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OF  CALIFORNIA 

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LIBRARY 

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4      f 

T      Or 


REPORTS  OF  FASES 


DECIDED 


IN  THE 


HIGH  COURT  OF  CHANCERY 


OF 


MARYLAND. 


HON.  JOHN    JOHNSON,    CHANCELLOR. 


VOL.   I. 

CONTAINING  CASES  FROM  THE  YEAR  1847  to  1850. 


BALTIMORE: 

PUBLISHED    BY    JOHN    W.    WOODS. 
1851. 


\\ 


ENTERED,  according  to  the  act  of  Congress,  in  the  year  one  thousand  eight  hundred  and  fifty- 
one,  by  JOHN  W.  WOODS,  in  the  Clerk's  Office  of  the  District  Court  of  Maryland. 


PREFACE. 


THE  importance  to  the  legal  profession  of  the 

~ysf 

State,  of  the  Decisions  in  the  High  Court  of  Chan- 
cery, made  by  the  present  able  and  distinguished 
Chancellor,  has  induced  the  undertaking  of  this 
work. 

The  design  is,  to  publish,  in  consecutive  volumes, 
all  the  more  important  cases  decided  since  the  21st 
of  December,  1846,  (the  date  of  the  appointment 
of  the  present  Chancellor,)  until  the  time,  when,  by 
virtue  of  the  provisions  of  the  New  Constitution, 
this  Court  shall  cease  to  exercise  its  functions. 
The  cases  embraced  in  the  present  volume,  were 
originally  reported  for,  and  printed  in,  "The  Mary- 
land Free  Press,"  a  newspaper  published  at  An- 
napolis. They  have  been  arranged  and  revised  by 
the  Chancellor  ;  and  notes  have  been  carefully  pre- 
pared to  each,  with  a  more  full  and  complete  index 
to  the  volume  than  has  yet  been  made  to  any  of  the 
Maryland  Reports. 

During  its  preparation  for  the  press,  the  work 
has  been  submitted  to  the  supervision  of  the  Chan- 
cellor, by  whom  the  whole  has  been  examined  and 
approved. 


6 

• 

The  high  estimation  in  which  the  Decisions  and 
Opinions  of  Chancellor  Johnson  are  held  by  the 
entire  bar  of  the  state,  would,  at  any  time,  be  an 
ample  recommendation  to  this  work,  but  at  present, 
when  all  equity  jurisdiction  is  about  to  be  trans- 
ferred to  new,  and,  therefore,  inexperienced  tri- 
bunals, it  is  believed  that  the  numerous  decisions 
upon  the  various  points  of  Chancery  Practice  and 
Pleading,  contained  in  this  volume,  will  render  it 
an  invaluable  book  to  every  lawyer  in  the  state. 

The  "Maryland  Law  Reporter,"  is  designed  to 
constitute  the  second  and  succeeding  volumes  of 
Chancellor  Johnson's  Decisions. 

THE   PUBLISHER. 


A    LI  ST 


OF  THE 


CHANCELLOKS  OF  THE  STATE  OF   MARYLAND. 


RICHARD  SPRIGG.    Appointed  by  the  General  Assembly,  3d  of  April, 

1777  ;  resigned,  March,  1778. 

JOHN  ROGERS.    Appointed  by  the  Governor  and  Council,  20th  of  March, 

1778  ;  died,  1789. 

ROBERT  HANSON  HARRISON.    Appointed   1st  of  October,    1789  ;  de- 
clined accepting. 

ALEXANDER  CONTEE  HANSON.    Appointed  3d  of  October,  1789  ;  died, 
1806. 

GABRIEL   DUVALL.    Appointed  20th  of  January,    1806 ;  declined  accept- 
ing. 

ROBERT  SMITH.    Appointed  23d  of  January,  1806  ;  declined  accepting. 
WILLIAM   KILTY.     Appointed  26th  of  January,  1806  ;  died,  1821. 
JOHN  JOHNSON.    Appointed  15th  of  October,  1821  ;  died,  1824. 
THEODORICK   BLAND.    Appointed  16th  of  August,  1824  ;  died,  1846. 
JOHN  JOHNSON.    Appointed  21st  of  December,  1846. 


A  TABLE  OF  CASES 

REPORTED  IN  THIS  VOLUME. 


PAGE. 

Abbot,  Horace  et  al.  vs.  The  Baltimore  and  Rappahannock  Steam 

Packet  Company,  542 
Albert,  Wm.  J.  and  Emily  his  wife  vs.  The  Savings  Bank  of  Baltimore 

etal.,  407 
Atkinson,  Joshua  J.,  permanent  trustee  of  Wm.  C.  Spindler,  vs.  James 

Philip,  Sen.  et  al.,  507 
Baltzel,  Philip,  surviving  partner  of  Thomas  Baltzel,  vs.  Ann  Trump, 

exr'x.  of  Wm.  B.  Trump,  517 
Bank  of  Westminster  vs.  Wm.   Pinkney  Whyte,  permanent  trustee  of 

George  Suter,  536 

Barry,  Geo.  W.  et  al.  vs.  Wm.  J.  Barry  et  al.,  20 

Beard,  Harriet  A.  vs.  John  H.  Linthicum  et  al.,  345 

Bowie,  Catharine  vs.  John  T.  Berry,  452 

Boyd  and  Hance  vs.  Alexander  Harris  et  al.  466 
Brooks,  Chauncy  et  al.  vs.  Henry  H.   Dent,  adm'r.  d.  b.  n.  of  Henry 

Brawner  et  al.,  523 

Brooks,  Chauncy  et  al.  vs.  Jno.  H.  Delaplaine  et  al.,  351 
Brown,  Henry  H.  vs.  Robt.  Stewart  etal., 
Buckingham,  Larkin,  the  Attorney  General  at  the  relation  of,  vs.  Ja- 

nette  Dorsey,  31 

Carroll,  Elizabeth  vs.  Jno.  Stanler,  36 

Cecil,  Owen  vs.  Mary  Ann  Dorsey  et  al.,  223 

Chesapeake  Bank  vs.  McLellan  and  Raborg,  328 

Childs,  Jno.  D.  and  Wife  vs.  Lucy  M.  Smith,  483 

Conn,  Robt.  et  al.  vs.  Jas.  Conn  et  al.,  212 
Clark,  Benj.  S.  et  al.  us.  Charles  G.  Ridgely  et  al., 

Clark,  Pearson  et  al.  vs.  Levering  et  al.,  178 

Clark  and  Mankin  vs.  Elizabeth  Abbott  and  Wm.  H.  V.  Cornise,  474 

Grain,  Peter  W.  et  al.  vs.  Barnes  and  Fergusson,  151 

Crouch,  Thos.  M.  et  al.  vs.  Harriet  Smith  et  al.,  401 


10 


Cullison  and  wife  vs.  Jno.  Bossom  et  al.,  95 

Dixon,  Charles  et  al.  vs.  Henry  R.  W.  Dixon  et  al.,  220 

Dixon  et  al.  vs.  Dixon  et  al.,  271 

Doub,  Jno.  vs.  Abraham  Barnes  et  al.,  127 
Duvall,  Edwin  W.  and  Peter  Sausser  vs.  J.   J.  Speed  and  Josias  Pen- 

nington,  229 

Duvall,  Jno.  W.  et  al.  vs.  Jno.  Coale,  168 

Elysville  Manufacturing  Co.  vs.  Okisko  Co.,  392 

Franklin,  Alex,  and  Robt.  vs.  Benj.  Franklin,  342 

Georges  Creek  Coal  and  Iron  Co.  vs.  Christian  E.  Detmold,  371 

Gibbs,  Robt.  M.  etal.  vs.  Wm.  C.  Cunningham  et  al.,  44 

Gilmor,  Robt.  vs.  Jno.  McP.  Brien  et  al.,  40 

Glenn,  Jno.,  trustee  of  Childs  vs.  Wm.  Baker  and  Benj.  Childs,  73 

Goldsborough,  Robt.  et  al.  vs.  Martha  R.  Ringgold  et  al.,  239 

Goodburn  and  wife  vs.  Stevens  et  al.,  420 

Green,  Edward,  trustee  vs.  True  Putney  and  Hugh  Riddle,  262 

Gwyn,  Chas.  R.  and  Jno.  vs.  Josiah  Lee  et  al.,  445 
Hamilton,  Jno.  vs.  Annapolis  and  Elk  Ridge  R.  R.  Co.  et  al.,                    *    107 

Harness,  Wm.  et  al.  vs.  Chesapeake  and  Ohio  Canal  Co.,  248 

Harrison,  Catharine  vs.  Wm.  McConeskey,  34 

Harrison,  Saml.  vs.  Alex'r.  B.  Harrison  et  al.,  331 

Harris,  Mackall  vs.  Lavielle  and  wife,  466 

Hayden,  Handel  M.  vs.  David  Stewart,  Jr.,  459 

Hays,  Elizabeth  vs.  Charlotte  Henry,  337 

Hintze,  Frederick  G.  B.  vs.  Christopher  Stingle  and  wife,  283 
Hollis,  Frances,  by  her  next  friend,  vs.  Thos.  J.  Hayes  and  Amos  Hollis,    479 

Jones,  Saml.,  Jr.  vs.  Robert  B.  Hancock  et  al.,  187 

Jones  and  White  vs.  Lloyd  Brown  et  al.,  191 

Keerl,  Geo.  H.  and  Henry  K.  Fulton  vs.  Robt.  Fulton,  532 
Kiddall,  Eliza  M.  vs.  Wm.  Trimble,  surviving  executor  of  Jane  Jacob,        143 

Little,  Christopher  vs.  Jno.  R.  Price  et  al.,  182 
Malcom,  Jas.,  permanent  trustee  of    Henry  Keene,  vs.  Washington 

Hall,  Jr.,  172 
Mantz,  Casper,  adm'r.  vs.  Buchanan  et  al.,  202 
McTavish,  Jno.  and  Emily  his  wife,  exr'x  of  Charles  Carroll  of  Carroll- 
ton  vs.  Wm.  Carroll,  160 
Mitchell,  Walter  vs.  Wm.  Holmes  et  al.,  287 
Moody,  Mary  et  al.  vs.  Emily  Elliott  et  al.,  290 
Mousley,  Jno.  et  al.  v*.  Edward  Wilson  et  al.,  388 


11 

PAGE. 

Negro  Monica  et  al.  vs.  Mitchel  et  al.,  355 

Owings,  Jas.  vs.  Wm.  Baldwin  et  al.,  120 

Pfeltz,  Julius  Peter  vs.  Ann  Maria  Pfeltz  et  al.,  455 

Potter,  Moses  vs.  Edward  M.  Kerr,  275 
Pue,  Richard  R.  prochdn  ami  of  Matilda  R.   H.  Pue  and  Henry  Pue, 

minors,  vs.  Henry  H.  Pue  et  al.,  382 

Sewall,  Robt.  vs.  Sylvester  Costigan  et  al.,  208 

Shepherd,  Jos.  vs.  Saml.  Shepherd  et  al.,  244 

Small,  Philip  A.  et  al.  vt.  Charlotte  C.  D.  Owings  et  al.,  363 

Snyder,  Hannah,  et  al.  vs.  Julia  Snyder  et  al.,  295 

Spangler,  Catharine  vs.  Jno.  Stanler  et  al.,  36 

Sullivan  Jno.  et  al.  vs.  Tuck,  ex'r  of  Bowie,  59 

Tayman,  Levi  L.  vs.  Jno.  Mitchel  et  al.,  496 

Thomas,  Saml.  W.  vs.  Wood,  ex'r.  of  Harrison,  296 

Thompson,  Laurence  et  al.  vs.  Aug.  Diffenderfer  et  al.,  489 

Tyson,  Isaac,  Jr.  vs.  Thorns.  B.  Watts,  13 
Washington  University  of  Baltimore  et  al.  vs.  Edward  Green, 

Waters,  Charles  A.  vs.  Charles  Howard  and  wife  et  al.,  112 

Waters,  Freeborn  G.  vs.  Rebecca  Waters  et  al.,  196 

West  and  Courtenay,  admrs.  of  West  vs.  Nathl.  Williams,  358 

Wheeler,  Thomas  T's  Estate,  80 

White,  Elizabeth  Ann  et  al.  vs.  Jos.  White  and  Jno.  C.  White,  53 
Whyte,  Wm.  P.,  permanent  trustee  of  Geo.  Suter  vs.  Jno.  Fisher  et  al..       536 

Williams  and  Bradford  vs.  Geo.  H.  Williams  et  al.,  199 

Williams,  Amos  A.  vs.  Savage  Manufacturing  Co.,  306 

Williams,  Edward,  estate  of,  25 

Wilson,  Jno.  F.  vs.  Matthew  Hardesty,  66 


CASES 


HIGH  COURT  OF  CHANCERY 


ISAAC  TYSON,  JR. 

vs.  ^     MARCH  TERM,  1847. 

THOMAS  B.  WATTS. 

SPECIFIC    PERFORMANCE — MUTUALITY — UNCERTAINTY. 


A  BILL  for  the'specific  performance  of  a  contract  is  an  application  to  the  sound 
discretion  of  the  court,  which  withholds  or  grants  relief  according  to  the  cir- 
cumstances of  each  particular  case,  and  in  the  exercise  of  its  extraordinary 
jurisdiction  in  such  cases,  the  court,  though  not  exempt  from  the  general 
rules  and  principles  of  equity,  acts  with  more  freedom  than  when  exercising 
its  ordinary  powers. 

The  contract  must  be  fair,  and  just,  and  certain,  and  founded  on  an  adequate 
consideration,  and  if  deficient  in  either  of  these  requisites,  its  performance 
will  not  be  decreed  ;  hence  the  plaintiff  who  seeks  the  enforcement  must 
make  out  a  stronger  case  than  is  required  of  him  who  resists  the  decree. 

The  contract  must  also  possess  the  essential  ingredient  of  mutuality,  and  in 
cases  of  inequality  of  obligation,  it  is  better  to  leave  the  plaintiff  to  his  rem- 
edy at  law  for  damages  ;  for  if  equity  acts  at  all,  it  must  act  ex  vig&re,  and 
carry  the  contract  into  execution  with  unmitigated  severity. 

The  manifest  object  of  the  defendant  in  this  case,  (and  which  he  believed  was 
secured  by  the  contract,)  was  to  have  the  minerals  on  his  farm  worked  as 
well  as  explored,  and  by  the  contract  he  gave  full  power  to  P.,  the  assignor 
of  the  plaintiff,  to  make  explorations  and  to  work  the  mines,  but  the  only  en- 
gagement on  the  part  of  P.  being  limited  to  explorations,  and  he  not  being 
bound  to  work  the~mines,  the  contract  was  held  deficient  in  reciprocity  of 
obligation,  and  its  specific  execution  refused. 
2 


14  HIGH   COURT  OF  CHANCERY. 

[The  object  of  the  bill  filed  in  this  case  was  to  procure  the 
specific  performance  of  an  agreement  entered  into  on  the  8th 
July,  1844,  between  the  defendant,  Thomas  B.  Watts,  of  Bal- 
timore county,  and  Thomas  Petherick,  an  unnaturalized  for- 
eigner, then  residing  in  Philadelphia.  By  the  terms  of  the 
agreement  Watts  was  to  permit  Petherick  to  explore  and  work 
certain  copper  mines,  on  what  he  represented  to  be  his  farm, 
reserving  to  himself  a  certain  portion  of  the  profits  ;  and  Peth- 
erick was,  before  a  certain  day,  to  "commence  proper  opera- 
tions for  ascertaining  by  explorations  the  mineral  prospects  on 
the  said  farm."  On  the  22d  December,  1844,  Petherick  dis- 
posed of  his  interest  under  the  agreement  to  the  complainant 
Isaac  Tyson,  Jr.,  who  afterwards  filed  this  bill  for  the  specific 
performance  thereof;  alleging,  that  Petherick  at  the  time  the 
agreement  was  executed,  thought  Watts  was  possessed  of  an 
unincumbered  fee  simple  interest  in  said  property,  but  that  he 
afterwards  found  that  he  only  had  the  reversion  after  the  termi- 
nation of  the  life  estate  of  his  mother,  and  that  this  reversionary 
interest  was  in  mortgage  ;  that  Petherick,  though  disappointed 
at  this  information,  still  expected  such  title  as  Watts  was  able 
to  give,  and  had  afterwards  conveyed  his  interest  to  the  com- 
plainant, who  with  the  same  expectation,  and  in  good  faith, 
purchased  the  same,  and  demanded  of  Watts  the  privilege  of 
mining  to  the  extent  of  said  Watts'  interest  in  the  property — 
which  had  been  refused.  The  defences  taken  by  the  defendant 
were — laches  on  the  part  of  Petherick  in  not  complying  with  the 
terms  of  the  agreement  by  the  time  specified  ;  the  incompetency 
of  Petherick,  an  unnaturalized  foreigner,  to  receive,  or  transfer 
a  title  to  the  land,  or  the  mining  privilege  aforesaid ;  the  sur- 
render to  the  defendant  of  his  rights  under  the  contract,  previ- 
ous to  the  assignment  to  the  complainant ;  and  the  want  of 
mutuality  in  the  agreement. 

The  case  having  been  argued,  the  Chancellor  delivered  his 
opinion  as  follows :] 


TYSON  VS.  WATTS.  15 

THE  CHANCELLOR: 

This,  as  has  been  remarked,  is  a  bill  for  the  specific  perform- 
ance of  an  agreement,  and  is,  therefore,  an  application  to  the 
sound  discretion  of  the  court,  which  withholds  or  grants  relief 
according  to  the  circumstances  of  each  particular  case,  as  it 
presents  itself.  The  discretion  it  is  true,  is  not  arbitrary  and 
capricious,  but  sound  and  reasonable ;  adapting  itself  to,  and 
being  governed  as  far  as  practicable  by  general  rules  and  prin- 
ciples, when  those  rules  and  principles  are  not  in  conflict  with 
the  justice  of  the  case  between  the  parties.  There  would  seem 
to  be  no  doubt,  that  when  a  court  of  chancery  is  called  upon 
to  exert  its  extraordinary  jurisdiction  in  compelling  the  specific 
performance  of  contracts,  though  it  is  not  entirely  exempt  from 
those  general  principles  of  equity  which  have  been  found  by 
experience  best  and  most  surely  to  advance  the  aims  and  ends 
of  justice,  there  is  nevertheless  more  freedom  in  its  action  than 
when  exercising  its  ordinary  powers.  St.  John  vs.  Benedict,  6 
Johns.,  Ch.  R.  111.  Seymour  vs.  Delancy,  ib.  223.  Geiger 
et  ftl.  vs.  Green,  decided  by  the  Court  of  Appeals  at  December 
terra,  1846.  "Unless  the  court  is  satisfied,"  says  Chancellor 
Kent,  "that  the  contract  is  fair  and  just,  and  equal  in  all  its 
parts,  and  founded  on  an  adequate  consideration,  it  will  not, 
by  the  interposition  of  its  extraordinary  power,  order  it  to  be 
executed ;"  and  this  seems  to  be  the  established  doctrine  upon 
the  subject. 

If  an  agreement  is  deficient  in  either  fairness,  justice,  or 
certainty,  its  specific  execution  will  not  be  decreed ;  and  hence 
a  stronger  case  is  required  on  the  part  of  the  plaintiff,  asking  a 
decree  for  the  specific  performance  of  a  contract,  than  is  requir- 
ed of  him  who  resist  such  decree.  2  Tory's  Eq.,  sec.  769, 770. 

And  in  addition  to  the  elements  of  fairness,  justice,  and  cer- 
tainty, the  agreement  must  be  mutual  before  the  power  of  the 
court  to  order  its  specific  performance  can  be  successfully  in- 
voked; and  indeed  it  may  be  well  doubted,  whether  a  contract 
can  be  considered  in  any  respect  fair  and  just  if  it  be  not  mu- 
tual. "I  have  no  conception,"  says  Lord  Redesdale  in  1  Sch. 
if  Lf.  18,  "that  a  court  of  equity  will  decree  a  specific  per- 


16  HIGH  COURT  OF  CHANCERY. 

forraance,  except  where  both  parties  had  a  right  by  the  agree- 
ment to  compel  a  specific  performance,  according  to  the  ad- 
vantage which  they  might  be  supposed  to  have  derived  from  it." 

The  Court  of  Appeals,  in  the  case  referred  to,  of  Geiger  et 
al  vs.  Green,  say,  that  "it  is  established  that  unless  there  is  to 
be  found  in  the  contract,  the  essential  ingredient  of  mutuality, 
a  court  of  equity  will  not  compel  its  specific  execution."  And 
in  that  case  the  bill  was  dismissed,  because  of  the  absence  of 
that  indispensable  ingredient. 

The  contract  upon  which  the  bill  in  this  case  is  filed,  and 
the  specific  performance  of  which  it  seeks  to  enforce,  contem- 
plated not  only  the  exploration,  but  the  working  of  the  mines 
of  copper  and  other  minerals  on  the  farm  of  the  defendant. 
It  recites  the  desire  of  the  defendant  to  have  them  explored 
and  worked,  and  the  willingness  of  the  said  Thomas  Petherick 
to  undertake  such  explorations  and  working,  and  then  in  con- 
sideration of  one  dollar  paid  to  the  defendant  by  Petherick,  the 
former  agreed  to  give  to  the  latter,  his  heirs  and  assigns,  "full 
power  to  make  explorations  and  works  on  the  said  farm,  as  he, 
the  said  Petherick,  might  think  proper  for  such  purpose,"  &c., 
and  after  a  reservation  to  the  defendant  of  a  seignorage  of  one 
full  fifteenth  part  of  the  minerals,  Petherick  for  himself,  his  heirs 
and  assigns,  stipulated  that  he  would  on  or  before  the  tenth  day 
of  July  then  next,  "commence  proper  operations  for  ascertain- 
ing, by  explorations,  the  mineral  prospects  on  the  said  farm." 

Although  therefore  it  was  the  manifest  design  and  object  of 
the  said  defendant,  to  have  the  minerals  upon  his  farm  worked, 
as  well  as  explored,  and  although  for  a  small  pecuniary  con- 
sideration he  gave  Petherick  full  power  to  make  such  explora- 
tions and  works,  the  only  stipulation  on  the  part  of  Petherick 
is,  by  a  certain  period  "to  commence  operations  for  ascertain- 
ing, by  explorations,  the  mineral  prospects  on  the  said  farm." 
The  engagement,  therefore,  on  the  part  of  Petherick  was  limit- 
ed to  the  explorations,  and  he  was  not  bound,  according  to  any 
interpretation  of  the  contract,  to  work  the  mines.  Whilst  there- 
fore the  contract  gives  to  him  the  power  to  work  the  mines,  as 
he  might  think  proper,  the  only  corresponding  obligation  on  his 


TYSON  VS.  WATTS.  17 

part  was  to  explore  for  the  purpose  of  ascertaining  the  mineral 
wealth  of  the  farm.  There  can  be  no  doubt,  I  think,  that  the 
defendant  never  would  have  entered  into  this  contract  if  he  had 
believed  that  the  working  of  the  mines  was  not  secured  by  it, 
and  that  whether  they  should  be  worked  or  not  depended  upon 
the  discretion  of  the  party  with  whom  he  was  contracting.  The 
contract,  therefore,  it  seems  to  me,  is  deficient  in  that  recip- 
rocity of  obligation,  without  which,  a  court  of  equity  will  not  de- 
cree a  specific  performance.  It  appears  to  me  difficult  to  main- 
tain, that  the  defendant  could  have  obtained  a  decree  against 
Petherick  for  the  specific  execution  of  this  contract  to  the  ex- 
tent which  he  clearly  had  in  view  in  entering  into  it — that  is, 
to  compel  Petherick  to  work  as  well  as  to  explore  the  minerals, 
even  though  the  title  of  the  defendant  to  the  farm  had  been 
entirely  unincumbered.  And  if  this  is  the  case — that  is,  if  there 
is  a  want  of  mutuality  in  the  remedies  as  well  as  the  rights  of 
the  parties  to  the  contract,  it  would  be  inequitable,  as  said  by 
Lord  Redesdale  in  Sch.  fy  Lef.  18,  to  decree  a  specific  perform- 
ance at  the  suit  of  him  who  is  not  bound ;  as  if  the  rule  were 
different,  he  might  enforce  or  avoid  the  contract,  according  as 
his  interest  might  incline  him  the  one  way  or  the  other.  It  is 
much  better  in  such  cases  of  inequality  of  obligation,  to  refuse 
a  specific  performance,  and  leave  the  plaintiff  to  seek  his  com- 
pensation, if  he  has  sustained  damage,  by  an  action  at  law ; 
because  if  equity  acts  at  all,  it  must,  as  Chancellor  Kent  says, 
"act  ex  vigor •<?,  and  carry  the  contract  into  execution  with  un- 
mitigated severity." 

The  contract  in  this  case,  though  varying  of  course  in  terms, 
and  in  some  respects  perhaps,  in  substance,  from  the  contract 
in  the  case  of  Geiger  vs.  Green,  decided  by  the  Court  of  Ap- 
peals, yet  in  other,  and  in  some  very  essential,  particulars,  it 
very  much  resembles  that  case.  In  that  case  the  contract  gave 
the  complainant  the  privilege  of  digging  and  removing  ore  from 
the  farm  of  the  defendant,  at  twenty-five  cents  per  ton,  for  the 
privilege  of  the  ground — leave  also  to  build  a  house  on  said 
land,  the  workmanship  to  cost  $100 — the  materials  to  be  got 
on  the  land  of  the  defendant  at  the  expense  of  the  plaintiff. 


18  HIGH  COURT  OF  CHANCERY. 

This  contract,  the  Court  of  Appeals  say,  is  unequal  in  its 
stipulations,  binding  one  party  and  not  the  other,  and  conse- 
quently unreasonable  and  unfit  to  be  carried  into  specific  exe- 
cution. 

It  seems  to  the  Chancellor,  that  so  far  as  regards  the  chief 
inducement  to  the  contract  on  the  part  of  the  defendant  in  this 
case,  to  wit :  the  working  and  making  the  deposits  of  mineral 
profitable  to  him,  it  is  precisely  like  the  contract  in  Geiger  Sf 
Green,  because  here,  as  in  that  case,  the  power  to  work  the 
minerals  is  a  privilege  to  Petherick,  which  he  may  or  may  not 
exercise,  in  his  discretion,  and  consequently  this  contract,  like 
that,  is  binding  on  one  party  and  not  the  other,  and  unfit  for 
that  reason  to  be  executed. 

The  bill,  however,  was  not  filed  by  Petherick,  but  by  his 
assignee,  a  party  with  whom  the  defendant  made  no  contract 
at  all.  One  who  has  entered  into  no  stipulations  with  him  of 
any  description,  and  who,  although  he  has  purchased  the  in- 
terest of  Petherick  in  the  agreement,  has  entered  into  no  en- 
gagement to  perform  such  stipulations  as  the  contract  may  be 
supposed  to  have  imposed  upon  Petherick. 

The  Chancellor  thinks  it  would  be  difficult  to  maintain,  suc- 
cessfully, that  upon  a  bill  filed  by  the  defendant  against  this 
plaintiff,  the  latter  could  be  compelled  to  perform  those  acts 
which  it  was  clearly  the  intention  of  the  defendant  to  secure, 
when  he  made  this  contract ;  and  if  so,  the  want  of  the  ele- 
ment of  mutuality,  as  between  these  parties,  is  supposed  to  be 
fatal  to  the  right  of  the  present  plaintiff  to  a  decree  for  a  spe- 
cific performance. 

It  being  the  opinion  of  the  court,  for  the  reason  stated,  that 
the  plaintiff  is  not  entitled  to  relief,  and  that  the  bill  must  be 
dismissed,  it  is  not  thought  necessary  or  proper  to  examine  the 
other  questions  raised  in  the  argument,  and  by  the  pleadings, 
and  therefore  no  opinion  is  expressed  upon  them.  It  may, 
however,  not  be  improper  to  say,  that  there  does  not — in  the 
confusion  and  discrepancies  which  have  been  pointed  out  and 
commented  upon  in  the  statement,  of  the  dates  of  these  trans- 
actions— appear  in  the  judgment  of  the  Chancellor  to  be  any 


TYSON  VS.  WATTS.  19 

ground  for  attributing  unfair  or  dishonorable  motives  to  the 
plaintiff. 

The  explanation  which  has  been  given  in  regard  to  these 
discrepancies,  seem  to  me  entirely  to  relieve  the  complainant 
from  any  such  imputation. 

Whilst,  however,  the  court  abstains  from  expressing  an  opin- 
ion, with  regard  to  the  effect  upon  this  case  which  the  circum- 
stance of  Petherick's  being  an  alien  may  be  supposed  to  have ; 
or,  upon  the  question  of  his  alleged  laches,  or  abandonment  of 
the  contract,  as  evidenced  by  the  correspondence,  it  is  deemed 
not  out  of  place  to  remark,  that  the  uncertainty  of  the  provi- 
sions of  the  instrument  which  is  sought  to  be  enforced,  would 
present  a  serious  objection,  if  the  other  difficulties  were  re- 
moved. If  this  contract  is  to  be  enforced  against  the  defend- 
ant, the  plaintiff  should  surely  be  required  to  perform  the  agree- 
ment on  his  part. 

But  what  can  he  be  required  to  do,  and  when  shall  he  be  re- 
quired to  do  it  ?  He  tells  you  himself  that  no  time  is  fixed  for 
working  the  mines ;  that  this  is  referred  to  his  own  discretion, 
and  cannot  be  commenced  until  after  the  determination  of  the 
life  estate  of  the  mother  of  the  defendant,  she  being  still  living. 
Upon  the  whole,  the  Chancellor  thinks  the  want  of  mutuality, 
the  uncertainty  and  the  difficulty  of  enforcing  the  agreement, 
consistently  with  those  principles  of  equity  by  which  the  court 
must  be  governed  in  the  execution  of  its  powers,  forbid  the 
relief  asked  for  by  this  bill,  and  that  it  must  consequently  be 
dismissed. 

[This  decree  was  affirmed  by  the  Court  of  Appeals.] 


20  HIGH   COURT  OF  CHANCERY. 


GEORGE  W.  BARRY  ET  AL.    ^ 

vs.  >      MARCH-- TERM,  1847. 

WILLIAM  J.  BARRY  ET  AL.     ) 

[WAIVER  OF  COMMISSIONS — PETITION  TO  VACATE  DECREE — LAPSE  OF  TIME.] 

A  TRUSTEE  may  waive  his  claim  to  commissions,  where  that  claim  exists. 
The  enrollment  of  a  decree  obtained  by  surprise,  may  be  vacated,  either  upon 

a  bill  or  petition. 
A  decree  or  order,  after  delay  and  lapse  of  time,  cannot  be  set  aside,  except 

upon  very  strong  grounds. 
The  order  sought  to  be  set  aside,  was  passed  on  the  18th  of  November,  1844, 

and  no  objection  is  made  until  August,  1846.    HELD — that  upon  the  ground 

of  delay,  alone,  there  would  be  great  difficulty  in  granting  relief  against  the 

order,  even  if  the  merits  were  with  the  petitioner. 

[On  the  24th  of  April,  1839,  a  decree  passed  this  court  for 
the  sale  of  the  real  estate  of  Robert  Barry,  deceased,  for  distri- 
bution among  his  heirs  at  law,  and  appointing  Bernard  W. 
Campbell  trustee  for  that  purpose.  The  trustee  being  unable 
to  effect  an  advantageous  sale,  the  property  was  rented  out  by 
him,  and  on  the  8th  November,  1844,  an  order  was  passed 
authorizing  him  to  continue  to  rent  the  same,  and  to  apply  por- 
tions of  the  rents  to  its  repair ;  and  referring  the  case  to  the 
Auditor  for  an  account.  On  the  18th  of  the  same  month  a 
further  order  was  passed,  allowing  the  trustee  a  commission  of 
eight  per  cent,  upon  his  collections,  and  disbursements.  Sun- 
dry accounts  were  stated  by  the  Auditor,  and  ratified  by  the 
court,  crediting  the  trustee  with  his  commissions,  and  with 
certain  payments  and  disbursements  made  by  him,  and  charg- 
ing him  with  the  rents  which  he  had  received  ;  and  afterwards 
on  the  petition  of  John  Glenn,  who  had  become  purchaser  and 
assignee  of  five-sevenths  of  said  property,  an  order  was  passed, 
dated  23rd  February,  1846,  directing  the  trustee  to  sell  the 
same,  upon  the  terms  mentioned  in  the  decree.  It  was  accord- 
ingly sold  to  said  Glenn,  at  public  sale  on  the  6th  May,  1846, 
for  the  sum  of  $12,000,  and  an  order  of  ratification  nisi  of  the 
sale  was  passed  on  the  28th  of  the  same  month.  On  the  24th 


BARRY  VS.  BARRY.  21 

of  August  following,  William  J.  Barry,  one  of  the  heirs  at  law 
of  said  Robert  Barry,  and  one  of  those  who  had  sold  his  in- 
terest in  the  above  mentioned  property  to  John  Glenn,  filed  a 
petition,  stating  that  the  trustee  both  before  and  after  his  ap- 
pointment, contracted,  and  agreed  to  charge  no  commission, 
and  praying  that  the  Auditor's  accounts  allowing  him  the  same, 
might  be  corrected  and  that  the  interlocutory  orders  of  the  8th 
and  18th  of  November,  1844,  and  those  ratifying  the  Auditor's 
accounts,  might  be  vacated  and  set  aside.  A  petition  with 
similar  averments  was  filed  by  John  Glenn,  who  also  stated 
that  he  had  purchased  five  of  the  seven  parts  into  which  the 
property  was  to  be  divided,  relying  upon  the  assurances  of  the 
trustee  that  he  would  charge  no  commission  for  his  services, 
and  prayed  that  the  same  might  not  be  allowed.  The  answer 
of  the  trustee  to  the  petition  of  William  Barry,  with  which  his 
answer  to  that  of  said  Glenn  substantially  agreed,  stated,  that  it 
was  thought  at  one  time  that  the  property  could  be  sold  by  an 
agent,  in  which  case  he  promised  to  undertake  the  duty  as  a 
friend  of  the  heirs,  charging  no  commission  for  selling  and 
distributing  the  money,  but  that  he  never  contracted  to  make 
no  charge  as  trustee  under  the  appointment  of  the  court. 
That,  could  the  property  have  been  sold  under  the  decree  in  a 
reasonable  time,  and  without  involving  him  in  extraordinary 
labor  and  trouble,  he  had  intended  charging  no  commission  be- 
yond what  would  cover  his  expenses,  and  to  that  extent  be- 
lieved he  had  expressed  himself.  The  trustee  also  denied  that 
he  had  contracted  to  make  no  charge  for  renting  the  property, 
&c. ;  he  admitted,  that  after  the  sale,  he  had  mentioned  to  the 
purchaser  that  he  did  not  design  charging  a  commission  on 
the  purchase  money,  but  upon  reflection  he  had  since  deter- 
mined to  submit  the  question  to  the  court,  in  view  of  his  trouble 
in  discharging  the  trust. 

A  great  deal  of  testimony  was  from  time  to  time  taken  in  the 
case,  and  the  questions  presented  by  the  petitions  having  been 
argued  before  the  Chancellor,  he  at  this  term  delivered  the  Ibl 
lowing  opinion:] 


22  HIGH  COURT  OF  CHANCERY. 

THE  CHANCELLOR: 

In  deciding  upon  the  propriety  of  allowing  commissions  to 
the  trustee  upon  the  sales  of  the  property,  the  court  is  not  em- 
barrassed by  any  previous  order  making  such  allowance,  no 
such  order  having  been  passed  ;  the  sale  itself,  indeed,  not 
being  finally  ratified. 

That  a  trustee  may  waive  his  claim  to  commissions,  where 
that  claim  exists,  has  been  decided  by  the  Court  of  Appeals  in 
the  case  of  Ridgely  vs.  Gittings,  2  Harr.  fy  Gill,  58,  and  of 
course  is  not  to  be  disputed,  nor  has  it  been  disputed  in  this 
case. 

Without  imputing  to  the  trustee  any  improper  conduct  in 
this  case,  or  any  the  least  desire  to  escape  from  his  engagement 
in  reference  to  the  claim  for  commission  on  the  proceeds  of 
the  sales  of  the  property  made  by  him,  (and  the  court  certainly 
means  to  make  no  such  imputation,)  I  am,  nevertheless,  of  opin- 
ion, after  a  close  examination  of  all  the  evidence,  that  it  was 
distinctly  understood  that  no  such  charge  was  to  be  made 
by  him. 

And  I  am  further  of  opinion,  that  when  Mr.  Glenn  pur- 
chased five  out  of  the  seven  shares  into  which  this  estate  is  to 
be  divided,  he  was  well  warranted  in  believing,  both  from  the 
oral  and  written  declarations  of  the  trustee,  that  the  property 
would  be  sold  by  the  latter,  unburdened  by  the  charge  of  com- 
missions. This,  the  Chancellor  thinks,  is  the  conclusion  to 
which  any  mind  must  come,  after  a  careful  examination  of  all 
the  evidence. 

It  is  also  clear,  he  thinks,  that  in  some  of  the  conversations 
and  letters  of  Mr.  Campbell  upon  the  subject  of  selling  this 
property,  a  judicial  appointment  for  the  purpose  was  within  the 
contemplation  of  the  parties;  and  I  do  not,  therefore,  see  how  the 
distinction  taken  in  the  answer,  between  the  duties  of  an  agent 
and  those  of  a  trustee,  appointed  by  the  court,  can  avail  him. 

Without  going  into  a  detailed  investigation  of  the  proof,  the 
Chancellor  upon  this  statement  of  the  conclusion  to  which  an 
examination  of  it  has  brought  him,  considers  it  proper  to  pass 
an  order  disallowing  the  claim  to  commissions  upon  the  sales 
of  the  property. 


BARRY    VS.    BARRY.  23 

The  question  raised  by  the  petition  of  William  J.  Barry  is  a 
different  one.  He  has  nq^interest  in  the  proceeds  of  the  sale, 
having  previously  thereto  sold  and  conveyed  his  share  of  the 
estate  to  Mr.  Glenn.  His  interest  is  limited  to  the  rents  and 
profits,  of  which  he  was  entitled  to  one-seventh,  to  the  period  of 
his  sale.  He  alone  petitions  for  a  re-examination  of  the  accounts, 
and  a  disallowance  of  the  commissions  already  allowed  to  the 
trustee  upon  the  rents.  The  other  parties,  therefore,  must  be  re- 
garded as  acquiescing  in  these  allowances,  or  at  least  consid- 
ered unwilling  to  embark  in  litigation  with  respect  to  them. 

William  J.  Barry  prays  that  the  enrollment  of  four  orders  of 
the  court,  dated  the  8th  and  the  18th  of  November,  1844,  the 
7th  of  January,  1845,  and  the  21st  of  February,  1846,  may 
be  vacated  and  set  aside,  and  that  the  accounts  of  the  Auditor 
may  be  re-examined  and  corrected  in  regard  to  the  commissions, 
and  some  other  allowances,  made  to  the  trustee.  He  states  in 
his  petition  that  he  had  then  but  recently  obtained  a  knowledge 
of  these  orders,  but  he  does  not  say  when  he  obtained  the  know- 
ledge. 

It  has  been  argued  on  the  part  of  the  trustee,  that  these  or- 
ders being  enrolled,  an  original  bill  upon  the  ground  of  fraud, 
or  a  bill  of  review  should  be  filed  to  vacate  them,  and  many 
authorities  have  been  cited  in  support  of  this  position.  Ex- 
pressions were  certainly  used  by  the  Court  of  Appeals  in  the 
case  of  Burch  et  al.  vs.  Scott,  1  G.  fy  J.,  393,  from  which  it 
might  be  fairly  inferred,  that  after  a  decree  is  obtained  and  en- 
rolled, a  petition  is  not  the  proper  proceeding  to  obtain  a  re- 
hearing. The  language  of  the  court  at  page  424  is,  "if  a  de- 
cree be  obtained  and  enrolled,  so  that  the  cause  cannot  be  re- 
heard upon  a  petition,  there  is  no  remedy  but  by  bill  of  review, 
which  must  be  upon  error  appearing  upon  the  face  of  the  de- 
cree, or  upon  some  new  matter,  as  a  release,  or  receipt,  dis- 
covered since."  But  in  the  more  recen^  case  of  Oliver  vs. 
Palmer  fy  Hamilton,  11  Gill  Sf  Johns.,  137,  it  was  decided  that 
the  enrollment  of  a  decree  alleged  to  have  been  obtained  by 
surprise,  might  be  vacated  upon  either  a  bill  or  petition,  and  in 
Wooster  et  al.  vs.  Woodhull,  1  Johns.  Ch.  Rep.,  539,  and  Lan- 


24  HIGH  COURT  OF  CHANCERY. 

sing  vs.  McPherson,  3  Johns.  Ch.  Rep.,  424,  petitions  to  vacate 
enrolled  decrees  were  filed,  and  were  considered  by  the  Chan- 
cellor as  proper  proceedings  for  the  purpose. 

Without,  however,  deciding  that  a  petition  was  or  was  not 
the  appropriate  remedy  in  this  case,  the  Chancellor  thinks  the 
prayer  cannot  be  granted. 

The  order  of  the  18th  November,  1844,  made  the  allowance 
to  the  trustee  of  commissions  on  the  rents  collected  and  dis- 
bursed by  him,  and  it  is  not  until  August,  1846,  that  any  objec- 
tions is  made  to  this  allowance.  It  certainly  would  be  attended 
with  great  inconvenience  and  be  productive  of  injurious  conse- 
quences, if  the  decrees  and  orders  of  the  court,  after  so  great  a 
length  of  time  may  be  set  aside,  except  upon  very  strong 
grounds.  This  objection  of  delay  struck  Chancellor  Kent  with 
great  force  in  the  case  of  Lansing  and  McPherson,  and  drew 
from  him  the  remark,  that  to  justify  the  interference  of  the  court 
in  such  a  case  would  require  a  very  special  case.  And  in  the 
case  of  Wooster  vs.  Woodhull  it  was  stated  by  the  same  Chan- 
cellor, that  there  was  no  general  or  positive  rule  upon  the  sub- 
ject, but  that  the  court  must  exercise  a  sound  discretion,  arising 
out  of  the  circumstances  of  each  case.  In  both  of  these  cases 
the  relief  sought  by  the  petitions  was  denied,  because  of  the  de- 
lay and  negligence  of  the  party  applying  to  the  court  for  its  in- 
terposition. 

There  would,  therefore,  be  great  difficulty  in  granting  the 
prayer  of  the  petition  of  William  J.  Barry,  upon  the  ground  of 
the  delay  in  applying  for  relief  against  the  orders,  even  if  the 
court  was  satisfied  that  the  merits  were  with  him.  But  the  court 
is  not  so  satisfied. 

The  Chancellor  has  already  expressed  the  opinion,  that  there 
was  an  understanding  or  engagement,  that  no  commission 
would  be  charged  by  the  trustee  on  the  sales,  and  that  Mr.  Glenn 
purchased  a  large  ^portion  of  the  property  with  knowledge  of 
that  engagement,  arid,  therefore,  that  as  against  him,  certainly  it 
would  be  improper  to  charge  commissions. 

But  this  property,  it  seems,  was  held  and  rented  by  the  trustee 
from  1839  to  1846  ;  thus  devolving  upon  him  a  great  deal  of 


ESTATE  OF  EDWARD  WILLIAMS.  25 

extraordinary  trouble  and  responsibility ;  and  his  accounts  show, 
that  he  discharged  the  duties  of  the  trust  with  care  and  fidelity. 
That  he  should  have  engaged  to  perform  these  onerous,  and 
long  continued  duties  without  compensation,  or  that  such  a  state 
of  things  could  have  been  within  the  contemplation  of  the  par- 
ties, at  the  period  to  which  the  evidence  refers,  is  not  to  be  as- 
sumed without  the  stronger  proof,  and  I  am  by  no  means  satis- 
fied that  such  is  the  case.  Under  these  circumstances,  and  with 
these  views  of  the  justice  of  the  case,  as  presented  by  the  pe- 
tition of  William  J.  Barry,  I  shall  pass  an  order  dismissing  it. 
The  Chancellor  understood,  in  the  course  of  the  argument, 
that  the  specific  objections  taken  in  the  petition  of  William  J. 
Barry,  to  a  number  of  the  credits  allowed  to  the  trustee  in  the 
accounts  of  the  Auditor,  were  abandoned,  with  the  exception  of 
the  allowance  of  commissions,  and  the  sum  of  one  hundred  dol- 
lars retained  by  him  on  account  of  William  J.  Barry's  share  of 
the  personal  estate.  But  as  this  sum  of  one  hundred  dollars 
was  applied  in  extinguishment  of  a  part  of  the  over  payment 
to  the  petitioner  on  account  of  the  real  estate,  it  is  not  perceived 
how  he  is  injured  by  it. 

[No  appeal  was  taken  from  the  decision  in  this  case.] 


ESTATE  OF  EDWARD  WILO 
LIAMS,  DECEASED.          5 


[TRUSTEE  TO  SELL  BEING  ALSO  GUARDIAN,  AS  TO  THE  LIABILITY  OF  HIS  SURETIES.] 

WHEN  a  final  account  has  been  passed,  or  the  time  limited  by  law  for  the  set- 
tlement up  of  an  estate  has  elapsed,  and  the  same  person  who  is  executor 
or  administrator,  is  also  guardian  to  the  parties  entitled  to  the  surplus,  the 
law  will  adjudge  such  surplus  in  his  hands,  in  that  character  in  which  his 
duty  requires  he  should  hold  it. 

The  transfer  in  such  case  is  effected  by  operation  of  law,  and  requires  no  act 
of  the  party  himself. 

This  principle  does  not  apply  to  a  trustee  appointed  under  a  decree  of  a  Court 
of  Chancery  to  sell  property,  where  no  time  is  fixed  by  law,  for  the  comple- 
tion of  his  trust. 

3 


26  HIGH   COURT   OF  CHANCERY. 

[By  a  decree  of  this  court  passed  on  the  2nd  of  August,  1837, 
John  S.  Selby  was  appointed  trustee  to  sell  certain  parcels  of 
real  estate,  which  had  been  devised  by  Edward  Williams,  de- 
ceased, to  his  widow,  Editha  Williams,  for  life,  with  remainder 
in  fee  to  four  of  his  grand-children.  On  the  5th  of  the  same 
month  he  gave  bond  as  such  trustee,  with  Nicholas  I.  Watkins 
and  Basil  Shephard  as  his  sureties,  and  on  the  7th  of  Septem- 
ber following,  he  sold  the  said  property  on  the  terms  specified 
by  the  decree,  viz.  The  interest  on  the  purchase  money  to  be 
paid  annually,  and  the  principal  in  five  years  from  the  day  of 
sale.  The  tenant  for  life  was  duly  paid  the  said  interest,  and 
from  the  27th  of  May,  1842,  to  the  7th  of  September,  the  trus- 
tee received  on  account  of  the  principal  the  sum  of  $2011,  for 
which  he  did  not  account,  and  since  that  time  he  became  ut- 
terly insolvent. 

On  the  8th  of  July,  1844,  a  petition  was  filed  by  the  grand- 
children of  the  testator  to  obtain  from  said  Selby  an  account  of 
his  proceedings  as  trustee,  in  reply  to  which,  he  stated,  that  he 
had   received   the  sum   above   mentioned,    with  which,    after 
making  certain  deductions,  he  had,    with  the   consent  of  the 
parties  interested,  charged  himself  as  guardian  to  two  of  said 
grand-children.     As  guardian  to  these  children  he  had,  on  the 
12th  of  June,  1837,  given  bond  with    Thomas  Robinson   and 
Harriet  Selby  for  his  sureties.      And    on  the  10th    of  April, 
1847,  another  petition  was  filed  in  this   cause  by    Charles  R. 
Stewart,  administrator  of  Thomas  Robinson,  deceased,  Harriet 
Selby,  Nicholas  I.  Watkins  and  Basil  Shephard,  expressing  a 
doubt  as  to  which  set  of  sureties,  Selby  should    be  held    liable 
for  his  default,  and  praying  the  court,  upon  a  view    of  all    the 
circumstances  of  the  case,  to  determine  their  respective   rights 
and  obligations.     A  commission  to  take  testimony  in  reference 
to  the  matter  of  this    petition  was  issued    and  returned ;  and 
there  was  also  returned  with  the  same  a  mortgage  dated  the 
21st  of  October,  1843,  executed  by  said  Selby  to  Nicholas    I. 
Watkins,  one  of  the  sureties  on  his  bond  as  trustee,  and  James 
H.  Watkins,  who  with  the  said  Nicholas  I.  and  the  said  Basil 
Shephard,  had  incurred  certain  responsibilities  on  his  account ; 


ESTATE  OP  EDWARD  WILLIAMS.  27 

against  which,  the  mortgage  was  intended  to  indemnify  them, 
and  "also  to  save  harmless  and  indemnify  the  said  Nicholas  I. 
Watkins  and  Basil  Shephard  as  sureties  on  his  trustee's  bond 
hereinbefore  mentioned." 

Selby,  whose  testimony  was  taken  under  this  commission, 
denied  that  he  had  ever  charged  himself  as  guardian  with  the 
money  received  by  him  from  the  purchasers  of  the  estate  of 
Williams ;  he  stated  that  he  had  only  intended  doing  this  on 
certain  terms,  which  he  described,  and  which  he  said  had  not 
been  complied  with.  To  a  cross  interrogatory  on  the  part  of 
Stewart  and  Mrs.  Selby,  he  replied  that  it  was  his  impression, 
that  when  he  executed  the  mortgage  he  did  not  know  the  exact 
sum  due,  but  whatever  money  he  had  received  as  trustee,  it 
was  his  intention,  and  the  said  Watkins'  intention,  to  have  se- 
cured by  the  said  deed  ;  that  he  was  not  asked  for  the  mort- 
gage, but  gave  it  of  his  own  motion. 

The  case  having  been  argued  before  the  Chancellor,  he  de- 
livered the  following  opinion,  after  first  stating  the  facts  :] 

THE  CHANCELLOR  : 

Upon  this  state  of  facts,  I  am  called  upon  to  decide,  whether 
the  burden  of  the  loss  resulting  from  the  default  of  Selby  shall 
be  thrown  upon  the  sureties  in  his  bond  as  trustee,  or  guardian; 
or,  in  other  words,  whether  the  balance  which  is  or  ought  to  be 
in  his  hands,  of  the  purchase  money  of  the  estate  of  Edward 
Williams,  is  to  be  considered  in  his  hands  as  trustee  under  the 
decree  of  this  court,  or  as  guardian  under  the  appointment  of 
the  Orphans  Court  ?  Upon  this  question,  the  solicitors  of  the 
parties  have  been  fully  heard,  and  the  facts  and  circumstances 
of  the  case  deliberately  considered. 

The  solicitors  for  the  sureties  in  the  bond  given  by  Selby  as 
trustee,  seem  to  consider  the  case  as  coming  within  the  princi- 
ple decided  by  the  Court  of  Appeals,  in  the  case  of  Watkins, 
administrator  vs.  The  State,  use  of  Shaw,  2  G.  fy  J.,  220,  in 
which  it  was  decided,  that  where  a  sole  executor  sustains  the 
double  character  of  executor  and  guardian,  the  law  will  ad- 
judge the  ward's  proportion  of  the  property  in  his  hands,  to  be 


28  HIGH  COURT  OF  CHANCERY. 

in  his  hands  in  the  capacity  of  guardian,  after  the  time  limited 
by  law  for  the  settlement  of  the  estate,  whether  a  final  account 
has  been  passed  by  the  Orphans  Court  or  not,  upon  the  princi- 
ple, that  what  the  law  has  enjoined  upon  him  to   do,  shall  be 
considered  as  done.     The  Chancellor  is  not  able  to   perceive 
the  analogy  between  that  case  and  the  one  now  under  consider- 
ation.    The  law  has  limited  a  period  within  which  an  executor 
or  administrator  shall  settle  the  estate,  and  when  the  same  per- 
son is  clothed  with  either  of  those  offices,  and  is  also  guardian 
of  the  parties  to  whom  the  surplus,  after  paying  the  debts   of 
the  deceased  belongs,  it  seems  entirely  proper,  when  the  time 
for  the  final  settlement  of  the  estate  has  elapsed,  that  he  should 
be  regarded  as  holding  such  surplus  in  the  character  in   which 
his  duty  requires  he  should  hold  it.      The  transfer  in  such   a 
case  from  the  executor  or   administrator  to   the  guardian — he 
being  the  same  individual — is  effected  by  operation  of  law,  and 
requires  no  act  of  the  party  himself.     But  the  case  of  a  trustee 
appointed  under  a  decree  of  this  court  to  sell  property   is  en- 
tirely different.     JVb  time  is  fixed  by  law  for  the  completion  of 
his  trust.     His  duty,  and  the  condition  of  his  bond  require  him 
to  perform  the  trust  reposed  in  him  by  the  decree,  or  that  may 
be  reposed  in  him  by  any  future  decree  or  order  in  the   prem- 
ises ;  but  there  is  nothing  in  either  which  limits  or  defines  the 
time  within  which  the  trust  reposed  in  him  must  be  completed. 
The  Chancellor  is  not  aware   that  the   counsel  undertook   to 
state  at  what  precise  period  this  shifting  of  the  property  from 
Mr.  Selby,  trustee,  to  Mr.  Selby,  guardian,  took  place,  and  he 
thinks  it  would  be  extremely  difficult  to  do  so.     His  appoint- 
ment as  trustee  took  place  in  August,  1837,  but  the  money  in 
question  was  not  received  until  1842 — five  years  afterwards — 
nor  could  it  have  been  received  earlier,  unless  the  time  of  pay- 
ment had  been  anticipated,  as  the  credit  on  the  principal  pro- 
ceeds of  sale  did  not  expire  until  the  7th  of  September  of  that 
year.     Selby  unquestionably  received  this  money  as  trustee, 
and  was  to  account  for  it  as  such.      At   what   period   did   he 
cease  to  hold  it  in  that  character,  and  become  responsible  for  it 
as  guardian  ? — is  a  question   which  seems   to  me   not  easily 


ESTATE  OF  EDWARD  WILLIAMS.  29 

solved.  It  is  said,  that  though  the  credit  did  not  expire  until 
1842,  and  the  payment  of  the  money  due  by  the  purchasers 
could  not  of  course  have  been  compelled  earlier,  yet  still  the 
rights  of  the  parties  might  have  been  settled  sooner,  and  the 
amount  due  the  wards  ascertained.  But  suppose  this  had  been 
done,  would  the  uncollected  money  due  from  the  purchasers 
have  been  considered  in  the  hands  of  Selby  as  guardian,  until 
an  order  of  court  has  passed  authorizing  him  to  receive  it  in 
that  character  ?  The  Chancellor  does  not  think  so. 

If,  indeed,  Selby  had  received  this  money,  either  after  or  be- 
fore it  was  payable  and  had  charged  himself  with  it  as  guar- 
dian, it  may  be  that  upon  the  principle,  that  the  court  will  sane- 
tion  when  done,  that  which  upon  application  would  have  been 
ordered  to  be  done,  he  would  be  regarded  as  holding  it  in  that 
character.  But  he  did  not  so  charge  himself,  and  if  we  are  to 
credit  his  deposition  taken  on  the  part  of  Watkins,  he  did  not 
intend  so  to  charge  himself  except  upon  terms  which  have  never 
been  complied  with.  It  seems  to  the  Chancellor,  that  if  the 
transmutation  insisted  upon  by  the  counsel  for  the  sureties  in 
the  trustee's  bond,  has  been  effected  by  operation  of  law,  then 
it  follows,  that  not  only  is  the  sum  of  $2011  in  the  hands  of 
Selby  as  guardian,  but  the  residue  of  the  purchase  money  must 
be  in  his  hand  in  the  same  character. 

There  is,  however,  another  view  of  the  case  in  which  I  am  of 
opinion,  the  sureties  in  the  bond  given  by  Selby  as  trustee, 
must  be  held  responsible,  at  least  to  the  extent  of  a  fair  rateable 
proportion  of  the  property  mortgaged  to  them  as  an  indemnity. 
Indisputably  at  the  date  of  that  mortgage — the  1st  of  October, 
1843 — which  was  after  the  receipt  of  the  money  by  Selby,  he 
and  the  mortgagees  considered  him  as  occupying  the  position  of 
trustee  with  reference  to  this  property,  and  liable  for  it  as  such. 
No  such  idea  as  a  legal  transfer  from  trustee  to  guardian  was 
entertained  then,  but  both  mortgagor  and  mortgagees  thought 
that  the  risk  continued  ;  and  for  that  risk  the  indemnity  was 
provided.  The  object  of  the  deed,  as  the  court  thinks,  was  not 
merely  to  indemnify  the  sureties  in  the  bond  of  the  trustee,  but 
to  secure  the  payment  of  the  money  which  he  had  received  in 
3* 


30  HIGH  COURT  OF  CHANCERY. 

that  capacity ;  and  this  view  of  the  object  of  the  deed  is  con- 
firmed by  the  evidence  of  the  trustee  himself,  examined  on  the 
part  of  those  sureties. 

The  Chancellor  entertains  a  decided  opinion,  that  the  parties 
entitled  to  the  proceeds  of  the  estate  of  the  deceased,  would 
have  a  right  to  insist  that  the  mortgaged  property  should  be 
applied  rateably  to  the  payment  of  the  debts  to  the  bank,  and 
the  amount  due  by  the  trustee  to  the  estate  of  Williams,  and  if 
so,  that  the  sureties  of  the  mortgagor  in  his  bond  as  guardian — 
admitting  that  bond  to  be  the  responsible  obligation — have  the 
same  right.  Indeed,  the  counsel  for  the  sureties  in  the  trustee's 
bond  were  not  understood  to  deny  that  the  bank  and  the  repre- 
sentatives of  the  deceased  would  have  a  right  to  insist  upon  the 
application  of  the  mortgaged  property,  but  they  dispute  the 
right  of  the  sureties  in  the  guardian's  bond,  for  want  of  privity. 

But  if  the  devisees  of  Williams  would  have  this  right,  then 
the  mortgaged  property  must  be  regarded  as  a  security  held  by 
them  for  the  payment  of  their  claim,  and  if  so,  it  would  seem 
to  follow,  that  upon  the  payment  of  their  claim  by  the  sureties 
of  their  guardian,  the  latter  would  have  a  right  to  insist  upon 
an  assignment  to  them  of  those  securities.  Cheesborough  vs. 
Millard,  1  Johns.  Ch.  Rep.,  130.  The  Chancellor  will  pass  an 
order  founded  upon  the  views  here  presented  ;  and  being  also 
of  opinion  that  Mrs.  Williams  is  entitled  for  life  to  the  interest 
upon  the  entire  proceeds  of  the  estate  sold,  will  likewise  pass 
an  order  to  that  effect. 

[No  appeal  was  taken  from  the  order  in  this  case.] 


BUCKINGHAM  VS.  DORSET.  31 


THE  ATTORNEY  GENERAL 
AT  THE  RELATION  OF 
LARK1N  BUCKINGHAM 

vs. 
JANETTE  DORSEY. 


MARCH  TERM,  1847. 


[PROCEEDING  TO  AVOID  A  PATENT  FOR  ALLEGED  FRAUD.] 

A  WARRANT  of  resurvey  does  not  authorize  a  party  to  include  a  vacancy  not 
contiguous  to  the  tract  or  tracts  to  be  resurveyed.  And  a  person  who  has 
not  a  title  to  the  land  on  which  he  obtains  a  warrant  of resurvey,  does  not, 
in  virtue  of  such  warrant,  acquire  a  right  of  presumption  in  the  adjoining 
vacancy. 

Yet,  patents  obtained  by  a  party  who  has  no  legal  title  to  the  original,  or  upon 
a  certificate  of  resurvey,  including  vacancy  not  contiguous  to  the  original, 
will  not  be  vacated,  except  for  fraud  in  fact,  charged  and  proved,  though  upon 
caveat  filed  in  the  land  office,  they  would  have  been  refused. 

A  proceeding  against  an  innocent  purchaser,  without  notice,  to  set  aside  a  pat- 
ent forty-seven  years  after  its  date,  and  forty-five  after  the  patentee  had  sold 
and  conveyed  th4  land  to  such  purchaser,  cannot  receive  the  countenance  of 
a  court  of  equity. 

[In  the  year  1795,  Samuel  Chase,  by  virtue  of  a  warrant  of 
resurvey,  taken  out  in  1793,  on  a  tract  of  land  then  owned  by 
him,  called  "Mansfield  Purchase,"  took  in  several  vacant  par- 
cels, some  of  which,  as  appears  by  these  proceedings,  were 
not  contiguous  to  the  original  tract,  and  obtained  a  patent  in 
1795,  by  the  name  of  "Chase's  Forest."  In  1797,  he  sold  a 
part  of  this  land  to  William  Hobbs,  who,  by  his  will,  devised 
the  same  to  defendant.  In  1841,  the  testator,  Buckingham, 
took  out  a  special  warrant  for  Buckingham  Place,  which  was 
located  upon  a  part  of  the  land,  included  in  the  survey.  The 
certificate  of  survey  being  duly  returned,  a  caveat  was  filed 
against  it  by  the  defendant,  Dorsey,  in  1842,  which  is  still 
depending.  The  bill  was  filed  in  this  case  to  vacate  the  patent 
obtained  by  Chase,  on  the  ground  of  fraud,  in  taking  in  tracts 
not  contiguous  to  his  own  land.] 


32  HIGH  COURT  OF  CHANCERY. 

THE  CHANCELLOR: 

This  is  then  the  case  of  an  information  filed  in  the  year  1842, 
at  the  relation  of  a  party  whose  title,  whatever  it  is,  commenced 
in  1841,  to  vacate  a  patent  of  land  granted  in  1795,  which  the 
the  patentee  in  1797,  sold  and  conveyed  for  a  valuable  consid- 
eration, to  an  individual  who  could  not  have  had  notice  of  the 
facts  upon  which  the  patent  is  now  impeached. 

It  is  certainly  true,  that  a  warrant  of  resurvey  does  not  author- 
ise a  party  to  include  vacancy  not  contiguous  to  the  tract  or 
tracts  to  be  resurveyed — and  it  is  equally  well  established  law 
of  the  land  office,  that  a  person  who  has  not  a  title  to  the  land 
on  which  he  obtains  a  warrant  of  resurvey,  does  not,  in  virtue  of 
such  a  warrant,  acquire  a  right  of  pre-emption  in  the  adjoining 
vacancy — and  yet  the  cases  of  Hammond  vs.  Norris  and  Ham- 
mond vs.  Warfield,  2  H.  fy  /.,  140,  141  and  151,  show,  that 
patents  obtained  from  the  land  office  by  a  party  who  has  no 
legal  title  to  the  original,  or  upon  a  certificate  of  resurvey  in- 
cluding vacancy  not  contiguous  to  the  original,  are  neverthe- 
less valid  and  available,  unless  some  intervening  right  of  a  third 
party  shall  deprive  them  of  their  operation.  These  cases  prove 
conclusively,  that  such  grants  are  not  void,  though  obtained 
irregularly  and  against  the  rules  of  the  land  office,  and  the  case 
of  Hammond  vs.  Ridgely,  5  H.  fy  /.,  263,  shows  that  a  grant 
is  not  void,  though  the  surveyor  includes  land  not  within  his 
county,  if  no  fraud  is  practiced,  though  upon  caveat  in  the  land 
office  the  grant  would  have  been  refused. 

These  departures,  then,  from  the  rules  of  the  land  office,  will 
not  void  the  grant,  if  the  ingredient  of  fraud  is  wanting,  and  it 
is  believed  that  no  case  can  be  found,  on  which  a  grant  has 
been  vacated  except  for  fraud  in  fact,  charged  and  proved. 
The  cases  in  1  H.  fy  /.,  332  and  374,  are  very  strong  to  show 
that  actual  fraud  is  indispensable  in  an  attempt  to  vacate  a 
grant.  The  case  of  Hoye  vs.  Johnston,  decided  by  the  Court 
of  Appeals  at  December  term,  1844,  was  a  case  of  actual  fraud 
upon  the  rights  of  a  third  party,  who  had  previously  acquired 
an  interest  in  the  land,  and  was  put  expressly  upon  that  ground. 

But  this  is  not  a  proceeding  to  vacate  a  patent  whilst  the 


BUCKINGHAM  VS.  DORSET.  33 

land  is  held  and  owned  by  the  patentee,  to  whom  the  irregu- 
larity and  the  imputed  fraud  founded  upon  that  irregularity  are 
attributed,  but  it  is  a  proceeding  against  an  innocent  purchaser, 
without  notice,  instituted  forty-seven  years  after  the  date  of  the 
patent,  and  forty-five  years  after  the  patentee  had  sold  and  con- 
veyed the  land  to  such  innocent  third  person  for  a  valuable  con- 
sideration and  without  notice,  and  this  too  by  a  party  who  had 
but  recently  acquired  an  interest  in  the  subject  of  this  contro- 
versy. 

The  state  of  Maryland,  in  the  year  1795,  sold  and  granted 
this  land,  first  receiving  the  purchase  money  from  the  pur- 
chaser, who,  in  two  years  afterwards,  sold  and  conveyed  it  to 
an  innocent  and  third  person,  who  paid  him  value  ;  and  then, 
forty-five  years  afterwards,  a  party  claiming  under  the  state, 
seeks  to  avoid  the  title  acquired  by  this  innocent  third  person. 
It  seems  to  the  Chancellor,  that  such  an  attempt  cannot  re- 
ceive the  countenance  of  a  court  of  equity.  If  parties  who 
purchase  lands,  are  required  not  only  to  trace  the  title  back  to 
the  patent,  but  to  go  behind  the  patent,  and  see  that  the  pro- 
ceedings which  led  to  it  are  all  regular,  difficulties  of  a  serious, 
if  not  insuperable  nature,  would  exist  in  the  investigation  of 
titles.  If  in  purchasing  land  taken  up  under  a  warrant  of  re- 
survey,  the  purchaser  must  see  at  his  peril,  that  no  vacancy  is 
included  which  is  not  contiguous  to  the  original  tract,  he  would 
also  be  bound  to  see  that  the  party  by  whom  the  warrant  was 
taken  out,  had  a  sufficient  title  to  the  original,  to  authorize  him 
to  sue  out  such  a  warrant.  It  seems  to  the  Chancellor,  that 
the  argument  ab  inconvenienti  is  powerful  against  such  a  prin- 
ciple, and  nothing  but  high  authority  could  induce  him  to 
adopt  it. 

For  these  reasons,  he  deems  it  proper  to  dismiss  this  pro- 
ceeding. 

[No  appeal  from  the  decree  in  this  case.] 


34  HIGH   COURT  OF  CHANCERY. 


CATHARINE  HARRISON 

vs.  £»     MARCH  TERM,  1847. 

WILLIAM  McCONKEY. 

[LIFE  INSURANCE  POLICY — ASSIGNMENT  OF.] 


BY  the  terms  of  the  assignment  of  a  life  insurance  policy,  the  assignee  was  to 
receive  the  proceeds,  and  if  other  securities  held  by  him  were  insufficient  for 
that  purpose,  to  apply  the  same  to  the  satisfaction  of  his  claims  against 
the  assignor,  and  to  pay  over  the  residue,  if  any,  to  the  wife  of  the  latter. 
HELD — 

That  this  was  such  a  consummate  transfer  and  delivery  of  the  policy,  as  to  take 
from  the  assignor  the  legal  power  and  dominion  over  it,  and  authorized  the 
company  to  pay  the  money  to  the  assignee  without  the  interposition  of  the 
administrator  of  the  assignor,  and  that  the  title  of  the  wife  to  the  residue, 
after  paying  the  claim  of  the  assignee,  was  good. 

[Thomas  P.  Harrison,  deceased,  late  of  Baltimore,  in  March, 
1846,  effected  an  insurance  of  his  life  in  the  National   Loan 
Fund  and  Life  Assurance  Company,  (chartered  by  act  of  the 
British  parliament,  and  doing  business  in  Baltimore,)  for  the 
sum  of  $1000,  and  received  from  said  company  its  policy,  which 
he  assigned  to  the  defendant,  McConkey,  to  whom  he  was  then 
largely  indebted,  in  aid  of  certain  securities  which  he  then  held, 
and  also  as  a  security  for  additional  advances,  at  that  time  made 
by  him,  to  the  assignor.     By  the  terms  of  the  assignment,  the 
proceeds  of  the  policy,  were  on  the  death  of  the  assignor,  to  be 
received  by  the  assignee,  and  in  case  the  other  securities,  held 
by  him  were  insufficient  for  that  purpose,  to  apply  said  pro- 
ceeds, or  so  much  thereof,  as  might '  be  necessary  to  the  satis- 
faction of  his  claims  against  the  assignor,  and  the  residue  to 
pay  over  to  the  wife  of  the  latter,  the  present  complainant,  to 
her  own  use,  and  free  from  all  claims  of  the  creditors  of  said 
Harrison,  the  assignor.     A  short  time  previous  to  his  death, 
Harrison  again  requested  said  McConkey  not  to  resort  to  the 
policy  of  insurance,  until  his  other  securities  should  be  exhaust- 
ed, and  it  appeared  from  the  proceedings,  that  the  deceased, 
though  he  effected  said  insurance  at  the  suggestion  of  McCon- 
key, was  partly  induced  so  to  do  by  the  desire  of  securing  to 


HARRISON  VS.  McCONKEY.  36 

his  wife  in  the  event  of  his  death,  the  sum  for  which  he  insur- 
ed. After  the  death  of  Harrison,  in  November,  1846,  McCon- 
key  received  the  amount  secured  by  the  policy,  which  latter 
was  delivered  to  the  agent  of  the  company,  and  transmitted  to 
the  general  agent  in  New  York. 

McConkey  having  been  nearly  paid  without  resorting  to  the 
proceeds  of  the  policy,  the  same  was  claimed  by  the  widow  of 
the  deceased,  whose  administrator  set  up  a  counter  claim  there- 
to, and  by  his  answer  denied  that  his  intestate  made  any  such 
assignment  as  was  valid  and  effectual  in  law,  to  vest  the  policy 
or  the  proceeds  thereof  in  the  complainant.] 

THE  CHANCELLOR  : 

I  am  of  opinion,  upon  the  facts  proved  in  this  case,  that  there 
was  such  a  consummate  transfer  and  delivery  of  the  policy  in 
question,  as  took  from  the  husband  the  legal  power  and  do- 
minion over  it ;  that  after  he  had  assigned  the  policy  by  in- 
dorsement and  delivery  to  the  defendant,  McConkey,  for  the 
purposes  disclosed  in  the  evidence,  there  no  longer  remained  to 
the  assignor  any  authority  or  control  over  it ;  that  the  property 
passed  by  the  indorsation  and  delivery ;  and  that  upon  the 
death  of  Harrison,  the  insurance  company  had  full  authority  to 
pay  the  money  to  McConkey,  the  assignee,  without  the  inter- 
position of  the  administrator  of  Harrison. 

This  is  not  like  the  cases  of  Pennington  vs.  Patterson,  2 
Gill  Sf  Johns. ,  208 — and  Bradley  and  wife  vs.  Hunt,  5  Gill  Sf 
Johns.,  54,  in  which  the  legal  power  and  dominion  over  the 
property  in  dispute,  remained,  notwithstanding  the  acts  done, 
by  the  alleged  donors ;  but  it  is  the  case  of  a  complete  and 
absolute  transfer  of  the  entire  possession  and  title,  leaving  the 
party  making  the  transfer,  no  power  whatever  over  the  subject, 
and  requiring  nothing  of  him  or  his  administrator  to  perfect  it. 
It  is  believed  that  according  to  the  reasoning  of  the  Court  of 
Appeals,  in  the  cases  referred  to,  that  tribunal  would  hold  the 
right  of  the  wife,  in  this  case,  to  be  good  against  the  adminis- 
trator of  the  husband. 

I  shall  accordingly  so  order,  but  the  case  must  go  to  the 


36  HIGH  COURT  OF  CHANCERY. 

Auditor,  for  the  purpose  of  stating  an  account,  showing  the 
precise  amount  which  may  be  due  the  complainant,  on  account 
of  the  proceeds  of  the  policy  received  by  McConkey,  and  what 
surplus  may  remain  in  his  hands,  of  the  other  securities  assign- 
ed him  by  Thomas  P.  Harrison,  which  will  be  payable  to  his 
administrator.  It  is  thereupon  ordered,  this  29th  day  of  Sep- 
tember, 1847,  that  this  case  be,  and  the  same  is  hereby  referred 
to  the  Auditor,  with  directions  to  state  an  account,  in  conform- 
ity with  the  views  hereinbefore  expressed,  arid  such  other  ac- 
counts as  the  nature  of  the  case  may  require. 

[No  appeal  was  taken  from  this  order.] 


CATHARINE  SP ANGLER 

vs. 
JOHN  STANLER. 

AND 

ELIZABETH  CARROLL 

vs. 
SAME. 


MARCH  TERM,  1847. 


[•DOWER — ACT    OF    1818,    CH.    193.] 

A  LEASE  of  lands  for  ninety-nine  years,  renewable  forever,  is  a  mere  chattel  in- 
terest, and  not  an  estate  in  lands,  from  which  dower  can  be  claimed. 

To  make  out  a  claim  for  dower,  it  is  necessary  to  show  that  the  husband  was 
seized  of  an  estate  of  inheritance,  during  coverture,  of  which  any  issue  the 
wife  might  have  had,  might  by  possibility  have  been  heir. 

Leases  containing  covenants,  on  the  part  of  the  lessor,  to  convey  the  fee  sim- 
ple to  the  lessees,  when  requested  so  to  do,  cannot  be  made  to  operate  as  a 
conveyance  by  lease  and  release  at  common  law. 

The  estates  which  passed  by  such  deeds  of  lease  were  legal  and  not  equitable 
estates  ;  and,  consequently,  the  act  of  1818,  ch.  193,  extending  the  dower 
right  to  lands,  held  by  equitable  title  in  the  husband,  has  no  application. 

[The  question  involved  in  this  case  was,  whether  the  com- 
plainants were  dowable  out  of  lands  held  by  their  respective 
husbands,  under  leases  for  ninety-nine  years,  renewable  forever, 


SP ANGLER  AND  CARROLL  VS.  STANLER.       37 

containing  covenants  on  the  part  of  the  lessor,  to  convey  the 
fee  simple  to  the  lessees,  their  executors,  administrators  or  as- 
signs, when  requested  so  to  do.  ] 

THE  CHANCELLOR: 

Notwithstanding  the  ingenuity  and  research  displayed  by  the 
counsel  of  the  complainants  in  these  cases,  the  Chancellor  thinks, 
they  are  not  entitled  to  the  relief  prayed  by  their  bills. 

They  ask  for  an  assignment  of  dower,  and  an  account  of 
rents  and  profits  from  the  deaths  of  the  respective  husbands  of 
the  complainants,  until  the  dower  shall  be  assigned,  and  as  the 
title  of  the  husbands  is  disputed,  it  is  not  clear,  that  it  might 
not  be  proper  to  put  the  complainants  to  the  establishment  of 
it  at  law,  before  granting  the  relief  asked  for.  Wells  et  ux  vs. 
Wells,  2  Gill  and  Johns.,  468. 

These  complainants'  husbands  were  not  clothed  with  such 
estates,  in  the  lands  out  of  which  the  dower  is  claimed,  as  to 
justify  his  granting  relief. 

They  both  held  under  deeds  executed  to  them  by  Richardson 
Stewart  in  the  year  1841,  these  deeds  were  simply  leases,  for 
ninety-nine  years  renewable  forever,  executed  upon  the  consid- 
eration of  three  hundred  dollars  paid  lessor,  and  an  engagement 
on  the  part  of  the  lessees,  to  pay  a  nominal  annual  rent  if  de- 
manded. The  habendum  is  to  the  lessees,  their  executors,  ad- 
ministrators and  assigns,  and  the  covenants  to  be  performed  on 
their  part,  bind  them  and  their  personal  representatives. 

The  whole  frame  of  the  deeds,  stamps  them  as  a  lease,  and 
as  such,  passing  merely  chattel  interests  in  the  property  em- 
braced in  them,  which,  upon  the  death  of  the  grantees,  would 
devolve  upon  their  personal  representatives,  and  indeed  it  ap- 
pears upon  the  face  of  the  bill  filed  by  Elizabeth  Carroll,  that, 
so  far  as  regards  the  land  out  of  which  she  claims  dower,  the 
defendant  holds  under  a  purchase,  made  of  the  personal  repre- 
sentative of  the  intermediate  assignee  of  the  lease  from  Stew- 
art, to  her  husband. 

But  in  order  to  make  out  a  claim  to  dower,  it  is  necessary  to 
show,  that  the  deceased  husband  was  seized  of  an  estate  of  in- 
4 


38  HIGH  COURT  OF  CHANCERY. 

heritance  during  the  coverture  of  which  any  issue  which  she 
might  have  had,  might  by  possibility  have  been  heir.  4  Kent 
Com.,  35. 

It  seems  to  me  impossible  to  say,  that  any  issue  which  either 
of  the  complainants  might  have  had,  by  their  respective  hus- 
bands, could  have  taken  this  property  as  heirs,  and  if  not,  one 
of  the  prerequisites  of  the  dower  claim  is  wanting. 

The  complainants  however  insist,  that  the  covenant  in  the 
deeds,  binding  Stewart  the  grantor,  when  required  by  the  grant- 
ees, their  heirs  and  assigns,  to  convey  the  demised  premises 
in  fee,  at  their  expense,  make  these  deeds  effectual  to  pass  the 
fee ;  that  the  lease  of  the  term  for  years,  operating  as  a  bargain 
and  sale,  and  the  use  and  possession  being  in  the  bargainee,  the 
covenant  operates  as  a  release,  by  way  of  enlargement  of  the 
estate,  and  thus  transfers  the  entire  interest  of  the  bargainer. 

But  this  mode  of  conveyance  by  lease  and  release,  it  is 
thought,  cannot  be  made  effectual  in  this  way,  the  lesser  estate 
must  be  created  first  by  a  bargain  and  sale,  to  which  the  stat- 
ute of  uses  awards  the  possession,  and  the  lessee  being  thus  in 
the  enjoyment  of  the  use  by  the  bargain,  and  of  the  possession  by 
the  statute,  is  competent  to  receive  a  release  of  the  reversion. 
But  if  he  is  not  thus  in  the  possession  and  enjoyment  of  the 
lesser  estate,  how  can  the  release  operate  by  way  of  enlarge- 
ment. There  would,  in  truth,  be  nothing  to  enlarge.  4  Kent, 
494  ;  2  Thomas'  Coke,  581,  note. 

The  covenant  in  these  deeds  could  not,  in  my  opinion,  in  any 
view  of  the  subject,  be  regarded  as  releases  at  common  law. 
They  certainly  were  never  intended  so  to  operate,  but  were 
merely  designed  to  bind  the  grantor,  at  some  future  time,  when 
requested  by,  and  at  the  expense  of  the  grantees,  to  convey  them 
the  estate  in  fee.  But  unquestionably  the  parties  never  sup- 
posed, or  designed  by  this  covenant,  to  adopt  an  artificial  mode 
of  conveyance,  which,  if  effectual,  at  once  transferred  the  entire 
estate  from  the  grantor  to  the  grantee. 

But  the  complainants'  solicitors  contend,  that  in  a  court 
of  equity,  which  considers  that  as  having  been  actually  done, 
which  is  agreed  to  be  done,  these  deeds,  by  force  of  the  cove- 


SP ANGLER  AND  CARROLL  VS.  STANLER.        39 

nant,  will  be  regarded  as  conveyances  of  the  absolute  estate. 
There  is  no  doubt  of  the  existence  of  such  a  doctrine  in  courts 
of  equity  but  the  question  is,  what  was  it  which  was  agreed  to 
be  done  by  these  deeds.  Why  merely  that  the  grantor,  when 
requested  by  the  grantees,  their  heirs  and  assigns,  and  at  their 
cost  and  charge,  would  execute  and  deliver  them  deeds  in  fee 
simple.  There  is  no  allegation,  or  proof,  that  such  request  ever 
was  made  at  any  time,  and  the  attempt  is,  by  this  equitable 
principle,  adopted  to  advance  the  purpose  of  justice,  in  the  case 
to  which  it  is  applicable,  to  make  these  parties,  long,  after  their 
deaths,  take  estates,  which  they  never  demanded,  or  wanted, 
when  alive. 

The  10th  section  of  the  act  of  1818,  chap.,  193,  which  de- 
clares, that  widows  shall  have  dower  in  lands  held  by  equitable 
title  in  the  husbands,  is  cited,  for  the  purpose  of  showing  that 
Catharine  Spangler,  one  of  the  complainants,  is  so  entitled,  it 
appearing  that  her  husband  did  not  alien  the  land  until  the  year 
1821,  it  being  supposed  that  the  title  of  her  husband,  if  not  a 
legal  was  certainly  an  equitable  one. 

The  Chancellor  thinks,  however,  that  the  estates,  whatever 
they  were,  which  passed  by  the  deeds,  were  legal,  and  not 
equitable,  estates,  and  consequently  that  the  act  of  1818,  extend- 
ing the  dower  right  to  lands  held  by  equitable  title  in  the  hus- 
bands, has  no  application  :  and  so  according  to  the  views  already 
expressed,  that  this  estate  was  leasehold  simply,  the  relief  prayed 
by  the  bills  must  be  denied. 

It  is  true,  the  claim  to  dower  is  a  favored  one,  but  it  must  be 
recollected  in  these  cases,  that  it  is  set  up  against  alienees  for 
a  valuable  consideration,  one  of  whom  purchased  from  the  per- 
sonal representative  of  a  preceding  alienee,  and  that  the  estate 
out  of  which  the  dower  is  claimed,  has  been  regarded  as  one, 
with  which  the  heir  at  law  had  no  concern. 

The  Chancellor,  upon  the  best  reflection  he  can  give  the  sub- 
ject, is  of  opinion  that  no  relief  can  be  granted  upon  these  bills, 
and  that  they  must  be  dismissed. 

[No  appeal  was  taken  from  this  decree.] 


40  HIGH  COURT  OF  CHANCERY. 


ROBERT  GILMOR 

vs.  J>     MARCH  TERM,  1847. 

JOHN  McP.  BRIEN  ET  AL. 


.1 


[POUNDAGE  FEES  OF  SHERIFF.] 

As  a  general  rule,  the  defendant,  and  not  the  plaintiff,  is  answerable  for  pound- 
age fees. 

If  an  execution  issue  irregularly,  that  being  the  act  of  the  plaintiff,  he,  and  not 
the  defendant,  will  be  liable  to  the  sheriff  for  poundage  fees  ;  but  if  an  exe- 
cution is  stayed  by  injunction,  the  defendant  is  liable. 

The  claim  of  a  sheriff  for  poundage  fees,  is  a  legal,  and  not  an  equitable, 
claim,  and  its  payment  must  be  enforced  by  a  proceeding  at  law. 

An  agreement,  by  an  assignee,  of  certain  judgments  to  pay  all  legal  costs 
arising  thereon,  was  held  not  to  impose  an  obligation  on  him  to  pay  pound- 
age fees. 

[Sundry  judgments  having  been  recovered  against  the  de- 
fendant Brien,  one  at  March  term,  1841,  five  at  November  term 
1841,  and  twelve  at  March  term,  1842,  writs  of  fieri  facias 
were  issued  upon  two  of  them,  returnable  at  March  term,  1842, 
and  upon  the  others  returnable  at  March  term,  1843.  The 
precise  date  of  these  writs  did  not  appear,  but  it  was  ad- 
mitted in  the  proceedings,  that  the  two  former  were  issued  in 
the  winter  of  1841,  and  the  others  in  the  winter  of  1842,  and 
1843  ;  and  also  that  in  virtue  thereof,  levies  were  made  on  cer- 
tain real  and  personal  property  of  the  defendant,  Brien,  which 
was  advertised  for  sale.  It  also  appeared  that  at  the  dates  of 
the  levies,  the  sheriffs  had  in  their  hands  for  collection,  certain 
officers'  fees  due  by  said  Brien,  and  to  satisfy  them,  seized 
other  property  of  his,  but  neither  the  precise  date  of  this  seiz- 
ure or  of  the  levy  under  the  writs,  or  a  schedule  of  the  property 
levied  upon,  were  produced. 

On  the  5th  June,  1843,  the  complainant  Gilmor,  who  held 
three  several  mortgages  on  the  property  of  said  Brien,  dated 
respectively  the  1st  September,  1841,  22nd  October,  1841,  and 
8th  June,  1842,  to  secure  him  for  moneys  advanced,  and  re- 
sponsibilities incurred  for  Brien,  to  a  very  large  amount,  filed 
his  bill  against  said  defendant,  and  the  judgment  creditors,. 


GILMOR  VS.   BRIEN.  41 

praying  among  other  things,  for  an  injunction  to  prevent  the 
latter  from  proceeding  upon  their  judgments.  Subsequently 
the  complainant  purchased  up  these  judgments,  and  had  them 
entered  for  his  own  use,  and  agreed  to  pay  all  legal  costs  aris- 
ing thereon. 

A  petition  was  afterwards  filed  in  the  case  by  Thomas  Keller 
and  David  T.  Wilson,  late  sheriff  of  Washington  county,  for 
an  order  on  the  complainant  (who  was  admitted  to  be  in  actual 
possession  of  the  property,  claiming  to  hold  under  the  mort- 
gages to  him,)  to  pay  them  the  poundage  fees  on  said  execu- 
tions, and  also  the  officers'  fees  above  mentioned. 

This  petition,  (which  sets  out  the  above  mentioned  facts  and 
also  alleges  the  insolvency  of  the  defendant  Brien,)  having 
been  argued  before  the  Chancellor,  he  delivered  his  opinion  as 
follows :] 

THE  CHANCELLOR  : 

The  general  rule,  undoubtedly,  is,  that  the  defendant  and  not 
the  plaintiff,  is  answerable  for  the  poundage  fees.  Howard  vs. 
the  Levy  Court,  1  H.  fy  J.,  558,  approved  in  Gurley  vs.  Lee, 
Gill  Sf  Johns.,  395. 

In  this  case,  Mr.  Gilmor  is  the  plaintiff,  being  the  assignee 
of  the  judgments,  and  if  he  can  be  made  liable  for  these  fees,  it 
must  be  because  of  some  exception  to  the  general  rule,  which 
general  rule  imposes  the  burden  upon  the  opposite  party. 
There  is  nothing  in  his  agreement  made  at  the  time  he  pur- 
chased the  judgments,  which  imposes  this  obligation  upon  him, 
as  it  appears  by  the  statement  and  deposition  of  Mr.  Neil,  who 
transacted  the  business  for  him,  that  he  bound  himself,  and 
only  agreed,  to  pay  those  fees  which  were  chargeable  to  the 
plaintiffs  in  the  judgments,  and  none  others. 

The  Court  of  Appeals  have  said,  in  the  case  of  Gurley  vs 
Lee,  that  if  an  execution  issues  irregularly,  that  being  the  act 
of  the  plaintiff,  he  and  not  the  defendant  will  be  liable  to  the 
sheriff  for  his  poundage  fees,  but  in  the  same  case  it  was  de. 
cided,  that  if  the  execution  is  stayed  by  injunction,  the  defend- 
ant at  law  is  liable.  In  the  case  under  consideration,  the  in- 
4* 


42  HIGH  COURT  OF  CHANCERY. 

junction  was  not  applied  for  by  the  defendant  at  law,  but  by  a 
mortgagee  of  the  defendant,  who  asked  for  the  protection  of  the 
court,  by  way  of  injunction  to  save  property  from  seizure 
and  sale  under  a  great  number  of  executions  on  judgments 
against  the  mortgagor,  every  one  of  which,  but  one,  appears  to 
be  posterior  in  date  to  the  two  first  of  his  mortgages,  which 
embrace  all,  or  a  great  portion  of  the  mortgagor's  property  in 
the  county,  and  one  for  very  large  sums  of  money. 

The  Chancellor  is  unable  to  see  any  thing  in  the  circumstan- 
ces of  the  case,  which  would  induce  him  to  throw  this  burden 
upon  the  assignee  of  these  judgments,  and  to  engraft  another 
exception  upon  the  general  rule,  which  makes  it  the  duty  of 
defendants  to  pay  the  poundage  fees.  But  even  conceding,  for 
the  sake  of  the  argument,  that  Mr.  Gilmor  is  liable  to  the 
sheriffs  for  these  fees,  upon  what  principle  is  it,  that  an  appli- 
cation can  be  made  to  this  court,  to  compel  the  payment. 

The  claim  of  a  sheriff  for  his  poundage  fees  is  a  legal,  and  not 
an  equitable  claim,  and  if  Gilmor  has,  by  taking  an  assignment 
of  the  judgments,  or  obtaining  an  injunction  to  restrain  the 
judgment  creditors  from  proceeding  upon  their  executions, 
made  himself  liable  to  pay  the  money,  what  is  to  prevent  the 
petitioners  from  proceeding  at  law  against  him  ?  The  case  of 
Cape  Sable  Company,  3  Bland,  630,  relied  upon  by  the 
council  for  the  petitioners,  decides,  that  the  claim  is  a  legal 
one  and  that  a  court  of  chancery  will  not  interpose,  unless 
the  sheriff,  without  such  interposition,  is  without  remedy.  The 
right  of  the  sheriff  to  have  recourse  to  this  court,  cannot  be 
maintained  upon  the  ground  of  lien,  because,  it  is  believed,  he 
has  no  such  lien,  for  his  poundage,  as  will  entitle  him  to  follow 
the  property  when  brought  into  this  court  for  administration , 
and  such  was  the  opinion  of  the  late  Chancellor  in  the  same 
case. 

But  the  case  of  the  Cape  Sable  Company  in  all  those  cir- 
cumstances, which  induced  the  Chancellor  to  sustain  the  appli- 
cation of  the  sheriff,  is  unlike  the  case  under  consideration. 
In  that  case  the  company,  considered  to  be  alone  liable  for  the 
fees,  was,  by  the  decree  of  the  court,  and  the  sale  under  the 


GILMOR  VS.  BRIEN.  43 

decree,  stripped  of  every  atom  of  its  property,  and  reduced,  in 
the  language  of  the  Chancellor,  to  the  condition  of  a  mere 
pennyless  entity,  utterly  destitute  of  pecuniary  ability  to  pay 
any  claim. 

The  sheriff  had  levied  executions  upon  the  property  of  the 
company  to  satisfy  judgments  against  it,  when  certain  persons, 
representing  the  interests  of  one  of  the  corporators  of  the  com- 
pany, applied  for,  and  obtained  an  injunction,  after  which,  and 
while  the  injunction  was  in  force,  a  decree  for  a  sale  passed, 
by  consent  of  the  parties,  under  which,  the  entire  property  of 
the  company  was  sold,  including  the  whole  of  that  upon  which 
the  executions  had  been  levied. 

Under  these  circumstances,  it  is  perfectly  obvious,  that  unless 
the  sheriff  could  recover  the  fees  due  him  from  the  proceeds  of 
the  sale  in  court,  he  was  entirely  without  remedy. 

But  how  different  was  that  case  from  this — here  there  has 
been  no  sale,  and  there  is  no  pretence,  that  Mr.  Gilmor,  if  lia- 
ble at  all  for  these  fees,  may  not  be  reached  by  a  proceeding  at 
law.  The  agreement,  to  be  sure,  asserts,  that  Mr.  Brien  is  in- 
solvent, but  that  does  not  affect  the  responsibility  of  Mr.  Gil- 
mor, and  the  order  applied  for,  is,  that  he  shall  be  required  to 
pay  the  money. 

The  Chancellor,  therefore,  thinks,  that  the  prayer  of  the  peti- 
tion cannot  be  granted  as  respects  the  poundage  fees  ;  and  the 
claim  for  officers'  fees,  under  the  circumstances  of  this  case,  is 
also  inadmissible,  and  consequently  an  order  will  be  passed  dis- 
missing the  petition. 

[No  appeal  was  taken  from  this  order.] 


44  HIGH  COURT  OF  CHANCERY. 


ROBERT  M.  GIBBS  ET  AL.  ) 

vs.  >      JnLY  TERM,  1847. 

WILLIAM  C.  CUNNINGHAM  ET  AL.  ) 

[TRUSTEE'S  SALE — OBJECTIONS  TO.] 

AN  advertisement  for  sale  of  lands  by  a  trustee,  stated  that,  "By  virtue  of  a 
decree  of  the  High  Court  of  Chancery,  there  will  be  sold  certain  real  estate," 
naming  the  tracts  and  giving  their  locality,  "of  which  J.  C.  died  seized  and 
possessed  ;"  but  did  not  state  the  names  of  the  parties  to  the  suit  in  which 
the  decree  passed,  nor  the  several  incumbrances  upon  the  property.  HELD — 

That  the  sale  would  not,  on  this  account,  be  vacated  in  the  absence  of  proof, 
that  competition  in  the  purchase  was  prevented,  or  the  sale  in  any  respect 
prejudiced  thereby. 

The  objection  that  the  trustee  did  not  sell  the  interest  of  the  parties  to  the  suit, 
but  only  the  interest  and  title  of  which  J.  C.  died  seized  and  possessed,  is  an 
objection  which  only  the  purchasers  themselves  could  take,  as  they,  and  they 
alone,  are  injured  by  it. 

Where  a  sale  is  objected  to  on  the  ground  of  inadequacy  of  price,  resulting  from 
doubts  about  the  title,  which  doubts  could  have  been  removed  by  reasonable 
efforts  on  the  part  of  the  trustee,  his  neglect  to  do  so  may  effect  the  question 
of  ratification. 

Inadequacy  of  price  will  not  induce  the  court  to  vacate  a  sale,  in  other  respects 
unexceptionable,  unless  such  inadequacy  is  so  gross  as  to  indicate  a  want  of 
reasonable  judgment  and  discretion  on  the  part  of  the  trustee. 

The  sale,  in  this  case,  was  made  for  $3000.  HELD— that  an  offer  of  $4000, 
made  subsequent  to  the  sale,  and  after  the  value  of  the  property  had  been  en- 
hanced, could  have  but  little  weight  in  determining  whether  the  property 
previously  sold  at  a  price  so  much  below  its  value,  as  to  indicate  a  want  of 
reasonable  judgment  in  the  trustee. 

The  validity  or  invalidity  of  a  sale  must  depend  upon  the  state  of  circumstances 
existing  at  the  time  it  was  made.  In  sales  made  by  trustees,  acting  under 
Ihe  decrees  of  a  court  of  chancery,  the  court  is  the  contracting  party  on  the 
one  side,  and  the  bidder  on  the  other — the  trustee  being  regarded  as  the  mere 
agent  or  attorney  of  the  court. 

A  trustee  after  making  fruitless  efforts  to  sell  the  lands,  according  to  the  terms 
of  the  decree,  sold  them  at  private  sale,  at  a  price  greatly  exceeding  the  best 
offer  he  could  get  for  them  at  public  sale.  HELD — 

That,  upon  the  principle  that  chancery  will  always  ratify  an  act  when  done, 
which  upon  previous  application  would  have  been  authorized,  the  objection 
to  the  act  of  the  trustee  founded  upon  the  form  of  the  sale,  cannot  prevail. 

Whilst  the  court  will  vacate  sales,  by  trustees,  made  under  the  influence  of 

error,  fraud,  misrepresentation  or  injurious  mistake,  it  would,  nevertheless, 

be  a  fatal  policy  to  be  astute  in  finding  out  objections  to  them. 

It  was  objected  to  the  sale  that  the  trustee's  bond  was  not  upon  stamped  paper, 

as  required  by  the  act  of  1845,  ch.  193,  which  went  into  operation  on  the  1st 


GIBBS  VS.  CUNNINGHAM.  45 

of  May,  1846.    The  bond  was  dated  on  the  29th  of  April,  1846,  but  was  not 
filed  and  approved  until  the  7th  of  July,  following.    HELD — 
That,  this  bond  having  been  approved  by  the  Chancellor,  as  required  by  the  decree, 
it  would  be  of  dangerous  consequence  to  say  that  the  purchaser  shall  not  get 
the  benefit  of  his  purchase,  if  the  bond  for  any  reason  is  defective. 

[This  case  was  heard  on  exceptions  to  the  sale  made  by  the 
trustee  appointed  to  sell  the  lands  of  James  Cunningham,  de- 
ceased, for  payment  of  his  debts.  According  to  the  requi- 
sitions of  the  decree  under  which  he  acted,  the  property  was 
first  exposed  at  public  sale,  on  the  8th  September,  1846.  The 
bids  were  rejected  by  the  trustee  for  insufficiency,  but  the  ad- 
vertisements in  the  papers  were  still  continued  by  him.  In- 
quiries were  afterwards  made  concerning  the  property  of  Duff 
Green,  as  agent  for  certain  other  persons,  and  the  trustee  ex- 
pressed his  willingness  to  receive  and  consider  any  propositions 
from  him,  but  nothing  further  was  heard  from  him,  from  that 
time  to  the  24th  of  May,  1847  ;  and  it  was  on  the  15th  May, 
1847,  sold  to  Jacob  Markell,  at  private  sale,  for  $3000  in  cash, 
which  price  was  deemed  advantageous  by  the  trustee,  and 
higher  than  what  was  offered  at  the  public  sale. 

A  portion  of  the  lands  of  the  deceased  had  been,  in  his  life- 
time, mortgaged  to  Henry  Wayman  and  Richard  G.  Stockett ; 
and  he  had  afterwards  also  executed  a  deed  of  trust  to  said  Way- 
man, who  had  refused  to  execute  the  trusts  in  any  manner. 

The  ground  taken  by  the  third  exception  was,  that  there  was 
alleged  to  be  an  outstanding  tax  title  in  some  purchaser,  the 
validity  of  which  title  was  doubtful ;  a  legal  tender  of  the  taxes, 
and  premium,  and  costs,  had  been  made  by  the  exceptant, 
Wayman,  to  the  tax  purchaser,  so  as  to  entitle  him  to  redeem 
the  lands,  which  was  refused,  whereby  the  title  of  the  purchaser 
was  released,  and  the  land  re-invested  in  the  former  owners. 
The  exceptant  stated  his  belief,  that  the  trustee,  at  the  time  of 
the  sale,  was  ignorant  of  this  tender  and  refusal. 

The  exceptions  argued  were  filed  by  Wayman,  and  the 
grounds  upon  which  they  were  based  will  sufficiently  appear 
from  the  opinion  of  the  Chancellor,  who  after  stating  the  case 
said :] 


46  HIGH  COURT  OF  CHANCERY. 

THE  CHANCELLOR: 

The  first  objection  taken  to  the  sale  is,  that  the  public  were 
not  properly  advised  of  the  title  in  the  property  thus  sold,  which 
the  trustee  had  the  power  to  sell. 

This  objection  rests  upon  the  supposition,  that  the  trustee 
should  have  stated  in  his  advertisement,  the  names  of  the  parties 
to  the  suit  in  which  the  decree  passed,  and  the  several  deeds 
creating  incumbrances  upon  the  property. 

The  decree,  it  will  be  recollected,  directs  that  the  real  estate 
of  James  Cunningham,  deceased,  in  the  proceedings  mentioned, 
or  so  much  thereof  as  may  be  necessary  to  pay  his  debts,  be 
sold.  It  does  not  say  in  terms,  that  the  title  of  the  parties  to 
the  suit  shall  be  sold,  though  no  doubt  a  sale  under  the  decree 
would  pass  such  title. 

The  language  of  the  advertisement  is,  "by  virtue  of  a  decree 
of  the  High  Court  of  Chancery,"  there  will  be  sold  certain  real 
estate,  naming  the  tracts  and  giving  their  locality,  of  which 
James  Cunningham  died  seized  and  possessed.  It  does  not 
say,  his  title  alone  will  be  sold,  but  the  lands,  of  which  he  died 
seized  and  possessed.  The  public  was  notified  by  this  adver- 
tisement, that  these  lands  were  to  be  sold  under  a  chancery 
decree,  to  which  decree,  of  course,  there  must  be  parties,  and 
I  am  of  opinion,  that  in  the  absence  of  evidence,  that  compe- 
tition in  the  purchase  was  prevented  by  the  character  of  the 
advertisement,  or  that  the  sale  was  in  any  respect  prejudiced 
thereby,  it  seems  to  me,  it  should  not  on  this  account  be  va- 
cated. A  reference  to  the  chancery  proceedings,  to  which  the 
public  was  directed  would  have  shown  who  were  the  parties 
and  what  title  was  to  be  sold.  The  trustee's  advertisement 
referred  to  the  fountain  of  his  authority ;  described  the  lands  to 
be  sold  by  name  and  locality,  and  give  such  other  information 
respecting  them,  as  would  enable  persons  disposed  to  purchase, 
to  ascertain  all  that  was  material  they  should  be  informed  of. 
The  Chancellor  does  not  think,  from  an  examination  of  forms 
of  the  advertisement  of  chancery  sales  usually  employed,  that 
such  precision  as  is  insisted  upon  by  the  counsel  for  the  parties 
objecting  to  this  sale,  has  been  supposed  to  be  necessary. 


GIBBS  VS.  CUNNINGHAM.  47 

The  second  objection  is,  that  the  trustee  did  not  in  fact  sell 
the  interest  of  the  parties  to  the  suit,  but  only  the  interest  and 
title  of  which  James  Cunningham  died  seized. 

The  purchasers,  in  their  answers  to  these  exceptions,  take  a 
different  view  of  the  matter ;  but  conceding  that  this  exception 
states  truly  the  nature  and  extent  of  the  interest  purchased  by 
Markell,  still  this  seems  to  be  an  objection,  which  only  the 
purchasers  themselves  could  take,  as  they,  and  they  alone,  are 
injured  by  it.  Besides,  it  may  not  be  unworthy  of  remark,  that 
the  sale  reported  by  the  trustee,  disposed  of  precisely  that  in- 
terest in  the  lands  of  which  Cunningham  died  seized ;  and  the 
answer  of  Wayman  to  the  bill  under  which  they  were  sold,  states, 
"that  he  died  seized  in  fee  for  the  several  tracts  of  land  named 
and  described  in  the  bill  of  complaint." 

The  third  objection  has  reference  to  the  cloud  upon  the  title, 
which,  it  is  supposed,  might  readily  have  been  removed,  but 
which  the  trustee  was  not  in  a  condition  to  remove  by  reason  of 
his  ignorance  of  facts  known  to  Wayman,  one  of  the  objectors. 

This  objection  may,  perhaps,  be  open  to  the  observation, 
that  if  Wayman  knew  any  fact  which  would  disperse  the  cloud 
which  hung  over  the  title,  and  omitted  to  communicate  it  to 
the  trustee  in  due  time,  it  does  not  become  him,  when  a  sale 
has  been  made,  upon  the  ratification  of  which  other  parties,  in- 
terested in  the  proceeds,  are  insisting  to  interpose  an  objection 
upon  that  ground. 

It  is  true,  that  when  a  sale  is  objected  to  upon  the  ground 
of  inadequacy  of  price,  which  inadequacy  may  be  traced  to 
doubts  about  the  title,  it  becomes  material  to  inquire,  whether 
the  trustee  might  not,  by  reasonable  efforts,  have  removed  the 
cloud  ;  and  if  the  court  can  see  that  such  efforts  were  not  used, 
the  question,  whether  the  sale  shall,  or  shall  not  be  ratified, 
may  be  affected  by  such  neglect.  Glenn  vs.  Clapp,  11  G.  fy  /.,  1. 

But  from  the  very  nature  of  the  doubt  about  the  title  in  this 
case,  it  was  impossible  that  any  diligence  on  the  part  of  the 
trustee  could  remove  it.  The  opinion  of  counsel  might  be 
taken  upon  the  subject,  but  nothing  short  of  the  judgment  of 
the  court  could  solve  the  question.  It  appears  by  the  proceed- 


48  HIGH  COURT  OF  CHANCERY. 

ings,  that  the  party  who  purchased  for  taxes,  asserted  and  was 
determined  to  maintain  the  title  thus  acquired. 

The  fourth  and  fifth  objections  are  based  upon  an  alleged  in- 
adequacy of  price,  and  upon  negotiations  carried  on  by  Mr. 
Wayman  for  the  sale  of  the  property,  which  resulted,  as  stated, 
in  selling  at  a  price  much  higher  than  the  price  obtained  by  the 
trustee.  That  inadequacy  of  price  will  not  induce  the  court  to 
vacate  a  sale,  in  other  respects  unexceptionable,  unless  such 
inadequacy  is  so  gross  as  to  indicate  a  want  of  reasonable 
judgment  and  discretion  in  the  trustee,  was  said  by  the  Court 
of  Appeals,  in  Glenn  vs.  Clapp,  11  G.  #  «/.,  9. 

It  is  material,  therefore,  to  inquire,  whether  the  inadequacy 
of  price  in  this  case,  is  so  gross  and  palpable  as  to  indicate  a 
want  of  indiscretion  and  judgment  on  the  part  of  the  trustee. 
Looking  to  the  bid  made  on  the  8th  September,  1846,  when 
the  lands  were  offered  at  public  sale,  as  any  criterion  of  the 
price  which  could  probably  be  obtained  for  them  ;  [and]  the 
sale  reported,  surely  cannot  be  condemned  upon  the  ground  of 
inadequacy,  since  the  sale  reported  is  for  a  much  larger  sum 
than  was  offered  at  the  public  bidding. 

But  it  is  said,  that  although  the  price  bid  at  the  public  offer 
of  this  property,  was  less  than   the  sum    which  Markell  and 
Thomas  propose  to  pay  ;  yet  the  trustee  had  information   that 
negotiations  were  pending,  if  not  concluded,  by  Wayman,  for 
a  much  larger  sum  ;  and  that  under  such  circumstances   the 
trustee  should  have  at  least  communicated  with  Mr.  Wayman 
before  he  made  a  sale.     The  Chancellor  thinks,  that  the  rea- 
sons assigned  by  the  trustee  for  proceeding  as  he  did,  are  satis- 
factory, and  indeed,  Mr.  Wayman  himself  confesses,  that  he, 
and  not  the  trustee,  was  remiss  in  not  giving  information  at  the 
proper  time.     But  is  there  in  truth,  any  evidence,  that  these 
lands  are  worth  more  ?      Or  that  more  could  be  obtained  for 
them  than  Markell  and  Thomas  have   agreed  to   give.     And 
emphatically,  it  may  be  asked,  is  there  any  evidence  to  show 
that  a  better  price  could  have  been  had  on  the  15th  of  May, 
1847,  the  date  of  the  sale. 

The  letter  of  Duff  Green,  on  the  19th  of  August,  1847,  with 


GIBBS  VS.  CUNNINGHAM.  49 

its  conditions  and  qualification,  cannot  be  regarded  as  an  offer  ; 
and  yet  it  is  the  only  one  which  has  been  made  for  the  property, 
except  such  as  may  be  found  in  the  correspondence  of  the  same 
party,  and  his  son,  with  Way  man  ;  and  in  the  contract  of  the 
9th  June,  1847,  between  Wayman  and  Green,  which,  besides 
containing  stipulations  which  render  it  totally  inadmissible,  is 
in  effect  withdrawn  by  the  letter  of  the  19th  August  last.  In 
fact,  though  this  property  has  been  in  the  market  by  advertise- 
ment in  the  newspapers,  with  very  little  intermission  from 
August,  1846,  to  May,  1847,  the  offer  of  Mr.  Markell  is  the 
only  one  to  which  any  substantial  character  can  be  assigned, 
besides  the  almost  nominal  bid  on  the  8th  September,  1846. 

/j     It  is  true,  Mr.  Wayman,  by  a  paper  filed  on  the  7th  instant, 
/  [Sept.  1847,]  agrees  to    give  four   thousand   dollars   for   the 
1  (  property,  on  the  terms  reported  by  the  trustee  ;  but  this  offer, 


k  ^  /  in  my  opinion,  cannot  be  allowed  to  have  much  weight  in  deter- 
'  mini 


mining  whether  the  property  sold  previously  at  a  price  so  much 
-'  below  its  value,  as  to  indicate  a  want  of  reasonable  judgment  in 
the  trustee. 

It  is  made  after  an  event  has  happened,  subsequent  to  the 
reported  sale,  which,  in  the  opinion  of  many  persons,  has  en- 
hanced the  value  of  the  property.  The  Chancellor  thinks,  as 
was  said  by  the  Court  of  Appeals,  in  the  case  of  Tyson  vs. 
Mickle,  2  Gill,  384,  that  the  validity  or  invalidity  of  the  sale 
must  depend  upon  the  state  of  circumstances  existing  at  the 
time  it  was  made.  The  clear  equity  of  such  a  principle  seems 
\indeniable. 

The  sixth  ground  relied  upon  for  not  ratifying  this  sale,  is 
founded  upon  the  manner  in  which  it  was  made.  It  was  a 
private  sale,  though  the  decree,  which  is  in  common  form,  di- 
rects a  public  one.  For  this  deviation  from  the  decree,  it  is 
supposed,  the  sale  must  be  condemned. 

It  is  an  admitted  principle,  that  in  sales  made  by  the  agency 
of  trustees  acting  under  the  decrees  of  a  court  of  chancery, 
the  court  is  the  contracting  party  on  the  one  side,  and  the  bid- 
der on  the  other  ;  the  trustee  being  regarded  as  the  mere  agent 
and  attorney  of  the  court.  I  say,  this  is  the  principle,  though 
5 


• 

HIGH  COURT  OF  CHANCERY. 


unlik 


. 

ike  all  other  contracts,  one  of  the  contracting  parties  is  per- 
mitted to  sit  in  judgment  upon  the  contract,  and  pronounce 
upon  its  validity  or  invalidity.  Glenn  vs.  Clapp,  11  G.  #  /., 
8;  2  Bland,  638,  639. 

The  principle,  however,  is  understood  to  be  incontestible, 
and  as  has  been  conceded  in  the  argument,  Chancellor  Hanson 
has  laid  down  the  rule,  which  should  govern  the  court  in  de 
ciding  upon  sales  made  under  its  authority.  In  the  case  of 
Lawson  vs.  the  State,  in  1804,  he  observed,  that  reasons  which 
would  induce  him  as  proprietor  or  trustee,  to  set  aside  a  sale 
made  by  his  agent,  should  determine  him  as  Chancellor,  to  re- 
fuse his  approbation  to  a  sale  made  by  a  trustee. 

It  was  decided  by  the  late  Chancellor,  that  if  a  trustee  di- 
rected to  sell  at  public  sale,  does,  notwithstanding,  sell  at  pri- 
vate sale,  the  sale  will  be  confirmed,  if  satisfactory  reasons  are 
given  for  doing  so,  and  no  objection  is  made.  Andrews  vs. 
Scotton,  2  Bland,  643. 

The  council  by  whom  this  case  has  been  argued,  have 
differed  as  to  what  was  meant  by  the  Chancellor,  when  he 
speaks  of  no  objection  being  made  ;  but  my  impression  is,  that 
he  must  have  meant,  objections  of  sufficient  force  to  outweigh 
the  reasons  given  by  the  trustee  for  deviating  from  the  terms  of 
the  decree.  And  that  he  could  not  have  intended  that  reasons 
which  would  be  satisfactory  to  him  in  the  absence  of  objec- 
tions, should  be  overborne  by  the  mere  unsupported  veto  of 
any  one. 

Looking  to  the  court  as  the  vendor,  and  the  trustee  as  its 
agent,  according  to  terms  prescribed  by  the  former,  if  for  rea- 
sons deemed  sufficient  by  the  court,  the  agent  departs  from  the 
form  in  which  he  is  to  exercise  his  authority,  who  could  have  a 
right,  merely  upon  the  ground  of  such  departure,  to  say  that 
the  principal  should  not  ratify  the  act  of  its  agent  ? 

If  the  principle  be  sound,  that  the  court  is  the  vendor,  and 
to  be  considered  the  proprietor  of  the  thing  to  be  sold,  such  a 
right  of  abitrary  interdiction  on  the  part  of  any  one  cannot  be 
maintained. 

But  it  is  to  be  recollected  in  this  case,  that  the  trustee  did 


GIBBS  VS.  CUNNINGHAM.  51 

not  undertake  to  sell  these  lands  at  private  sale,  until  a  fruitless 
effort  had  been  made  to  dispose  of  them  according  to  the  terms 
of  the  decree;  and  that  even  after  he  had  failed  in  this  effort, 
they  were  constantly  kept  in  the  market  by  advertisement  offer- 
ing them  at  private  sale.  It  is  not  the  case,  therefore,  of  a 
trustee  who  has  undertaken  to  depart  from  the  terms  of  the 
authority  under  which  he  acts,  without  first  making  an  effort  to 
comply  with  them  ;  but  it  is  the  case  of  a  deviation  from  the 
terms,  after  an  effectual  endeavor  to  conform  to  them.  It  is 
also  a  circumstance  very  material  to  be  considered,  that  the 
price  at  which  the  trustee  has  contracted  to  sell  these  lands 
greatly  exceeds  the  best  offer  he  could  get  for  them  when  ex- 
posed to  public  sale  ;  and  another  very  strong  recommendation 
of  the  sale  made,  is  to  be  found  in  the  circumstance,  that  the 
property  was  never  withdrawn  from 'the  public  eye,  but  kept 
always  before  it  and  in  the  market  by  advertisements  in  the 
newspapers. 

In  Tyson  vs.  Mickle,  2  Gill,  383,  a  private  sale  made  by  a 
trustee  was  confirmed  by  the  court,  though  the  amount  of  the 
private  bid  was  considerably  less  than  had  been  offered  for  the 
same  property  when  exposed  publicly  ;  and  the  court  in  that 
case,  say,  that  Chancery  will  always  ratify  an  act  when  done, 
which  upon  a  previous  application  would  have  been  authorised. 
It  is  true  that  in  the  case  of  Tyson  and  Mickle,  the  parties  in- 
terested consented  to  the  sale,  but  one  of  those  parties,  and 
one  largely  interested,  was  a  minor,  and,  therefore,  incompetent 
to  consent.  Adopting  the  principle  of  the  Court  of  Appeals, 
that  an  act  when  done  will  be  ratified,  which  the  court,  if  ap- 
plied to  beforehand,  would  have  authorised,  I  am  of  opinion 
that  the  objection  to  the  act  of  the  trustee  in  this  case,  founded 
upon  the  form  of  the  sale,  cannot  prevail ;  as  it  seems  to  me,  that 
upon  an  application,  setting  out  all  that  has  taken  place,  prior  to 
the  sale,  to  Mr.  Markell,  the  trustee  would  have  been  authorised 
to  accept  his  offer. 

Whilst  the  Chancellor  would  consider  it  his  duty  to  vacate 
sales  made  by  officers  of  his  appointment,  under  the  influence 
of  error,  fraud,  misrepresentation,  or  injurious  mistake  ;  he, 


52  HIGH  COURT  OF  CHANCERY. 

nevertheless,  thinks,  that  it  would  be  a  fatal  policy,  to  be 
astute  in  finding  out  objections  to  them.  The  impression  of 
the  court  is,  that  they  are  entitled  to  the  benefit  of  every  fair 
and  reasonable  intendraent,  and  that  a  bona  fide  purchaser  is 
not  to  lose  the  rights  which  he  supposed  he  was  acquiring 
when  dealing  with  its  agent,  upon  objections  upon  the  model 
regulations  of  the  sale,  the  non-observance  of  which  is  not 

\shown  to  have  been  injurious.     Marshall's  Lessee  vs.   Green- 
field, 8  G.  $  /.,  349. 

+.      The  seventh  objection   to  the  sale,  is,  because  the  trustee's 
/    bond  is  not  upon    stamped  paper,   as  required  by  the  Act  of 
S    1845,  chapter,  193.     The  law  went   into  effect  on  the  1st  of 
May,  1846,  and  this  bond  though  dated  on  the  29th  of  April, 
1846,  was  not  filed  and  approved  by  the  Chancellor,  until  the 
7th  of  July  following. 

The  argument  is,  that  the  bond  was  of  no  effect  until  filed 
and  approved  ;  those  acts  constituting  its  delivery  and  accept- 
ance. 

By  adverting  to  the  terms  of  the  decree,  it  will  be  found, 
that  the  trustee  is  to  proceed  to  make  sale  of  the  property, 
upon  giving  bond  in  a  certain  penalty,  and  with  sureties  to  be 
approved  by  the  Chancellor,  conditioned  for  the  faithful  per- 
formance of  the  trust  reposed  in  him  by  the  decree. 

This  bond  has  been  approved  by  the  Chancellor,  and  it  seems 
to  me,  it  would  be  of  dangerous  consequence  to  say,  that 
although  thus  approved,  the  purchaser  shall  not  get  the  benefit 
of  his  purchase,  i£the  bond  for  any  reason  is  defective. 

Few  persons,  I  presume,  would  be  disposed  to  bid  at  trus- 
tees' sales,  if  such  a  doctrine  is  to  obtain.  The  Chancellor  for 
this  reason,  does  not  deem  it  necessary  to  express  an  opinion 
upon  the  point  discussed  by  the  counsel ;  but  upon  an  applica- 
tion to  require  the  trustee  to  execute  another  bond,  he  will  be 
prepared  to  do  so. 

The  remaining  exceptions,  relating  to  the  subsequently  in- 
creased value  of  the  land  from  the  contemplated  passage  of  the 
v^  Baltimore  and  Ohio  rail  road  through  or  near  it,  was  passed  over 
by  the  Chancellor,  as  having  been  sufficiently  disposed    of  by 


WHITE  VS.  WHITE.  53 

his   previous  remarks.      The  objections   were  overruled ;  the 
parties  being  directed  to  pay  their  own  costs  respectively. 

[The  order  in  this  case  was  affirmed  on  appeal.] 


ELIZABETH  ANN  WHITE  ET  AL. 

vs.  £.     JULY  TERM,  1847 

JOSEPH  WHITE  AND  JOHN  C.  WHITE.. 

[JURISDICTION — REMEDY  AT  LAW — LIMITATIONS — NOTICE  OF  TRUST.] 

THE  allegations  of  the  bill  are,  that  forty-six  shares  of  the  stock  of  the  Man- 
hattan Company,  of  New  York,  were  transferred  to  the  defendant,  Joseph 
White,  in  trust  for  the  complainants,  prior  to  the  year  1839  ;  that  in  January, 
1840,  said  Joseph,  by  letter  of  attorney,  empowered  Campbell  P.  White  to  sell 
and  transfer  said  shares  to  the  defendant,  John  C.  White,  which,  in  January 
and  February  of  the  same  year,  was  accordingly  done.  That  said  defendant 
knew  the  stock  was  trust  property,  but  had  made  no  returns  of  the  proceeds 
to  complainants,  though  payment  was  duly  demanded  of  him.  The  bill  then 
prays  that  John  C.  White  may  account  for  the  sales  of  said  stock  and  pay 
over  the  proceeds  thereof,  and  for  further  relief.  Upon  the  question  of  ju- 
risdiction, it  was  HELD — 

That  whether  John  C.  White,  the  defendant,  is  himself  to  be  regarded  as  the 
purchaser  of  this  stock,  or  as  the  agent  to  sell  and  account  for  the  same  to 
the  plaintiffs,  the  remedy  at  law  is,  in  either  aspect,  complete  and  ample 
without  the  aid  of  a  court  of  equity. 

The  transactions  out  of  which  the  claim  arose  occurring  early  in  1840,  and  the 
bill  not  having  been  filed  until  January,  1846,  the  statute  of  limitations  was 
held  to  be  a  flat  bar  to  the  plaintiffs'  right  to  recover. 

If  the  relation  of  trustee  and  cestui  que  trust  once  existed  between  these  parties, 
that  relation  terminated  as  soon  as  the  stock  was  sold,  and  the  obligation  to 
pay  over  the  proceeds  supervened,  and  then  the  right  of  action  accrued  and 
limitations  began  to  run. 

The  statute  of  limitations  does  not  apply  to  a  purely  technical  trust,  of  which  a 
court  of  chancery  has  exclusive  jurisdiction. 

The  answer  of  John  C.  White  denied  notice  of  the  trust,  and  it  appearing,  by 
proof,  that  he  acted  merely  as  the  agent  of  his  father,  Campbell  C.  White,  in 
the  sale  of  this  stock,  and  had  paid  over  the  proceeds  to  his  principal,  in 
which  payment  the  complainants_  had  acquiesced  for  more  than  five  years, 
upon  the  merits  of  the  case  it  was  HELD — 

That  under  these  circumstances  it  would  be  very  hard  and  setting  a  dangerous 
precedent,  to  hold  him  liable  to  pay  it  a  second  time. 

5* 


54  HIGH  COURT  OF  CHANCERY. 

[The  facts  of  this  case  will  appear  from  the  Chancellor's 
opinion  :] 

THE  CHANCELLOR: 

To  the  relief  prayed  by  this  bill,  two  objections  are  taken  in 
the  answer  of  the  defendant,  John  C.  White,  against  whom  also 
a  recovery  is  sought,  which  seem  to  the  Chancellor  insuperable. 
These  objections  are  independent  of  the  merits  and  will  be  first 
considered. 

The  bill  alleges,  that  prior  to  the  year  1839,  forty-six  shares 
of  the  capital  stock  of  the  Manhattan  Company  of  New  York, 
were  transferred  to  the  defendant,  Joseph  White,  in  trust  for 
the  benefit  of  the  complainants — that  on  or  about  the  28th  of 
January,  1840,  the  said  Joseph  executed  a  letter  of  attorney  to 
Campbell  P.  White,  of  New  York,  empowering  him  to  sell  and 
transfer  to  the  defendant,  John  C.  White,  also  of  New  York, 
the  said  shares,  and  that  in  the  months  of  January  and  February 
of  the  same  year,  the  shares  were  transferred  accordingly  to 
said  defendant,  and  that  said  defendant  knew  that  the  stock 
was  trust  property — that  said  defendant  accepted  and  received 
said  shares  at  the  market  value,  which  at  the  time  was  about 
$80  per  share,  but  that  he  has  made  no  returns  of  the  proceeds 
derived  from  the  sales  of  said  stock,  nor  the  interest  accruing 
thereon,  though  payment  has  been  duly  demanded  of  him,  and 
that  he  now  owes  and  is  indebted  to  the  complainant  for  the 
whole  amount  of  the  sales,  principal  and  interest.  The  bill 
then  prays  that  the  defendant,  John  C.  White,  may  account  for 
the  sales  of  said  stock,  and  pay  over  the  proceeds  of  the  same, 
and  for  further  relief. 

Joseph  White,  who  was  subsequently  released  by  the  com- 
plainants from  all  responsibility,  by  his  answer  admitted  the 
truth  of  the  allegations  of  the  bill,  and  submitted  to  such  decree 
as  the  court  might  think  right. 

The  other  defendant,  John  C.  White,  before  meeting  and 
denying  upon  their  merits  the  bill  of  the  complainants  to  a  de- 
cree against  him,  relies  by  his  answer — first,  upon  the  want  of 
jurisdiction  of  a  court  of  equity,  over  the  case  made  by  the 


WHITE  VS.  WHITE.  55 

bill,  which,  he  insists,  presents  a  case  cognizable  at  law — and 
secondly,  upon  the  act  of  limitations  as  a  bar  to  the  relief  ask- 
ed for. 

The  Chancellor  is  of  opinion,  that  either  of  these  defences  is 
fatal  to  the  complainant's  right  to  recover  in  this  court. 

There  is  not  certainly  upon  the  face  of  the  bill  a  single  aver- 
ment to  show  that  the  complainants  would  encounter  any  ob- 
stacle in  a  proceeding  in  a  court  of  law  to  recover  the  proceeds  of 
the  sales  of  this  stock.  Whether  the  defendant  John  C.  White 
is  himself  to  be  regarded  as  the  purchaser,  or  as  the  agent  to 
sell  and  account  to  the  plaintiffs  for  the  proceeds  of  the  sales, 
(and  there  is  some  ambiguity  in  the  allegations  of  the  bill  upon 
this  point,) — still  the  legal  remedy,  in  either  aspect,  is  com- 
plete and  ample,  without  the  aid  of  a  court  of  equity.  The 
bill  presents  the  case  of  a  s'ingle  transaction  of  the  sale  of 
stock,  the  particulars  of  which  seem  to  have  been  known  to  the 
complainants,  or  of  which  the  proof  was  entirely  within  their 
reach,  without  having  recourse  to  the  conscience  of  the  defend- 
ant. As  between  him  and  them  there  was  unquestionably  no 
such  trust  as  would  bring  the  case  within  the  exclusive  juris- 
diction of  a  court  of  equity.  The  charge,  is,  not  that  this 
stock  was  held  by  the  defendant  John  C.  White  in  trust  for 
these  complainants,  but  that  it  was  so  held  by  Joseph  White, 
and  that  the  transfer  and  sale  was  made  in  virtue  of  an  authori- 
ty derived  from  him. 

Why  then,  if  John  C.  White  is  liable  at  all,  could  not  a  re- 
covery be  had  against  him  in  a  court  of  law  ?  There  is  no  com- 
plication in  the  accounts  which  requires  the  aid  of  a  court  of 
chancery  to  unravel — no  discovery  from  the  defendant  to  estab- 
lish the  facts  upon  which  the  recovery  must  be  founded ;  nor 
does  the  bill  profess  to  place  the  jurisdiction  of  the  court  upon 
that  footing.  Nor  is  there  any  thing  in  the  relation  of  these 
parties,  as  trustee  and  cestui  que  trust,  which  places  the  trans- 
actions between  them  under  the  exclusive  control  of  this  court. 
The  cases  oiAdair  vs.  Winchester,  7  G.  #  /.,  114,  and  Oliver 
vs.  Palmer  Sf  Hamilton,  11  G.  if  /.,  426,  are  supposed  to  be 
conclusive  authorities  against  the  complainant's  right  to  pro- 
ceed in  this  court  upon  this  bill. 


56  HIGH  COURT  OF  CHANCERY. 

I  am  of  the  opinion  that  the  statute  of  limitations,  relied  upon 
by  this  defendant,  interposes  a  flat  bar  to  the  plaintiff's  right  to 
recover  against  him.  The  transaction  out  of  which  the  claim 
arises,  took  place  in  the  year  1840,  and  the  proof  shows,  I 
think,  very  clearly,  that  the  complainants,  or  some  of  them, 
had  notice  thereof  soon  thereafter,  and  yet  the  bill  was  not  filed 
until  January,  1846. 

Now,  if  this  defendant,  John  C.  White,  could,  in  any  view 
of  the  case,  be  looked  upon  as  a  trustee  to  make  sale  of  this 
stock,  and  that  the  relation  of  trustee  and  cestui  que  trust  did  at 
one  time  exist  between  him  and  these  complainants,  upon  which 
hypothesis  alone,  as  it  seems  to  me,  the  jurisdiction  of  this 
court  could  be  maintained ;  still,  this  relation  terminated  as 
soon  as  the  stock  was  sold,  and  the  obligation  to  pay  over  the 
proceeds  supervened.  From  that  time  it  ceased  to  be  a  con- 
tinuing subsisting  trust,  and  then,  whether  the  remedy  was  at 
law  or  in  equity,  the  right  of  action  accrued,  and  limitations 
began  to  run.  Green  vs.  Johnson  and  wife,  3  G.  fy  J.,  389. 

If,  to  be  sure,  the  relation  between  these  parties  constituted 
a  purely  technical  trust,  of  which  a  court  of  chancery  had  ex- 
clusive jurisdiction,  limitations  could  not  be  successfully  relied 
upon,  because,  in  that  case,  there  being  no  legal  remedy,  the 
statute  could  not  be  applied  by  analogy,  and  being  in  terms 
not  applicable  to  courts  of  equity,  could  not  be  taken  advantage 
of.  But  undoubtedly,  as  it  appears  to  me,  whatever  may  have 
been  the  character  of  the  relation  between  them  at  one  time,  it 
terminated  when  the  stock  was  sold,  and  the  obligation  to  pay 
over  the  proceeds  came  into  existence.  Jlngell  on  Lim.,  349; 
Kane  vs.  Bloodgood,  7  Johns.  Chan.  Rep.,  90. 

Indeed,  the  complainants  themselves  allege  and  show  a  ter- 
mination of  the  trust,  when  they  charge,  as  they  do  in  their  bill, 
the  defendant's  indebtedness  to  them  in  a  large  sum  of  money, 
being,  as  they  aver,  the  proceeds  of  the  stock,  and  the  payment 
of  which  by  the  defendant  to  them  they  also  aver  had  been  duly 
demanded. 

The  Chancellor  does  not  think  that  the  circumstance  of  this 
defendant  being  a  non-resident,  deprives  him  of  the  benefit  of  the 


WHITE  VS.  WHITE.  57 

statute  ;  since  it  is  clearly  shown  that  the  defendant  was  in  Balti- 
more more  than  three  years  before  the  present  bill  was  filed — that 
his  being  there  must  have  been,  and  was  in  point  of  fact,  known 
to  the  complainants,  and  that  they  had  full  and  ample  oppor- 
tunity, if  they  had  thought  fit,  to  proceed  against  him  then. 
Hy singer  vs.  Baltzell,  3  G.  4"  /.,  158. 

But  apart  from  these  objections,  I  cannot  bring  my  mind  to  the 
conclusion,  that  the  complainants  have  any  claim  against  this 
defendant,  John  C.  White,  upon  the  merits. 

The  evidence,  I  think,  clearly  shows  that  he  is  not  only  en- 
tirely blameless  in  this  transaction,  but  that  he  has  been  guilty 
of  no  laches  which  could,  upon  any  just  principle,  render  him 
responsible,  for  the  proceeds  of  this  stock  to  these  parties.  There 
is  nothing,  as  it  appears  to  me,  in  the  evidence,  which  brings 
home  to  him  a  knowledge  that  these  shares  of  stock  stood  in 
the  name  of  Joseph  White  in  trust  for  the  complainants,  nor 
that  he  or  they  had  any  interest  therein  ;  and  in  his  answer, 
being  in  this  particular  directly  responsive  to  the  bill,  which  al- 
leges notice  of  the  trust,  any  such  trust  is  expressly  denied.  It 
is  stated  in  the  answer  of  this  defendant,  that  in  the  months  of 
January  and  February,  1840,  a  large  amount  of  the  shares  of 
the  stock  of  this  banking  company  were  sold  by  him,  as  a  bro- 
ker, for  his  father,  Campbell  P.  White,  and  his  uncle,  Robert 
White,  both  of  New  York — that  he  knew  them,  and  them  only, 
in  these  transactions,  and  accounted  with  and  paid  them  the 
money  as  his  principals  ;  and  the  proof  of  Campbell  P.  White, 
under  the  New  York  commission,  is  in  precise  accordance  with 
this  statement  in  the  answer. 

There  can  be  no  sort  of  doubt,  therefore,  that  this  defendant, 
John  C.  White,  has  paid  to  the  person  by  whom  he  was  em- 
ployed, the  proceeds  of  the  sales  of  this  stock  ;  and  it  also  ap- 
pears from  the  letters  of  Joseph  White,  the  father  of  the  com- 
plainants, by  whom  the  stock  was  held  in  trust,  addressed  to 
the  said  Campbell  P.  White,  that  he  knew  that  the  money  had 
been  received  by  the  latter.  The  attempt,  then,  is,  five  years 
after  the  date  of  the  transaction,  to  compel  this  defendant  to 
pay  the  money  a  second  time.  That  he  has  already  paid  it  is 


58  HIGH  COURT  OF  CHANCERY. 

undeniable,  and  it  is  equally  undeniable,  that  he  paid  it  to  the 
person  by  whom  he  was  employed  to  sell  the  stock,  without 
notice  of  the  trust,  or  of  any  circumstance  which  could  awaken 
a  suspicion  that  the  person  to  whom  he  made  the  payment  was 
not  entitled  to  receive  the  money  ;  for  the  Chancellor  thinks 
the  effort  to  fix  such  knowledge  upon  him  has  been  unsuccess- 
ful. To  hold  him  liable,  under  such  a  state  of  facts,  to  see  to 
the  application  of  the  money,  would  seem  to  be  an  extremely 
hard  measure  of  justice — so  hard,  indeed,  that  I  should  be  un- 
willing to  adopt  it  without  the  most  conclusive  authority. 

In  addition  to  the  evidence  furnished  by  the  letters  of  Jo- 
seph White  to  Campbell  P.  White,  which  clearly  show  that  he 
knew  of  the  receipt,  by  the  latter,  of  the  money  for  which  the 
stock  sold,  the  indorsement  made  by  Joseph  White  on  the  ac- 
count, as  early  as  April,  1841,  proves  that  he  must  have  known 
that  the  money  was  placed  to  his  credit  on  the  books  of  John 
C.  White  &  Sons,  of  which  firm  he  was  a  partner. 

Under  all  the  circumstances  of  this  case,  and  especially  when 
we  consider  the  long  acquiescence  of  these  parties  in  the  pay- 
ment made  by  the  defendant,  John  C.  White  to  Campbell  P. 
White,  it  would  be  very  hard,  and  setting  a  dangerous  prece- 
dent, to  hold  him  liable  to  pay  it  a  second  time. 

The  observations  made  by  Chancellor  Kent  in  Tripler  vs. 
Olcott,  3  Johns.  Ch.  Rep.,  473,  ar?  very  applicable  to  the 
present  case,  and  strongly  against  the  plaintiff's  right  to  a 
decree. 

It  is  believed  to  be  true,  as  a  general  rule,  that  a  sub-agent 
is  accountable  only  to  the  superior  agent  who  has  employed 
him,  and  not  to  the  principal,  and  that  an  agent  employed  by 
a  trustee  accounts  with  him,  and  not  to  the  cestui  que  trust. 
Story  on  Agency,  sec.  217.  And  I  can  see  nothing  in  this  case 
which  should  make  the  general  rule  inapplicable  to  it. 

For  the  reasons  which  have  been  given,  it  is  the  opinion  of 
the  court  that  the  complainants  are  not  entitled  to  relief,  and  a 
decree  will  be  passed  dismissing  the  bill. 

[No  appeal  was  taken  from  this  decree.] 


SULLIVAN  VS.  TUCK.  59 


JOHN  SULLIVAN  ET  AL.^ 

vs.  >     JULY  TERM,  1847. 

TUCK,  EX  R  OF  BOWIE.  3 

[SPECIFIC     PERFORMANCE LIEN    ON    GROWING  CROPS REMEDY    AT    LAW DAM- 
AGES.] 

THE  defendant's  testator  entered  into  a  contract  with  the  complainants  by 
which  they  were  to  become  his  agents  for  the  sale  of  his  crops,  advance  him 
money  and  accept  his  drafts,  for  the  payment  of  which  he  pledged  his  crops  on 
hand,  and  the  growing  crops  of  the  year  1847.  Upon  the  faith  of  this  agree- 
ment, complainants  made  large  advances  to  testator,  and  at  the  time  of  bis 
death,  which  occured  in  January,  1848,  he  was  largely  indebted  to  them. 
Upon  a  bill,  by  complainants,  claiming  a  lien  on  the  corn  and  tobacco  in  hand, 
and  on  the  crop  of  wheat  sown  in  the  fall  of  1847,  and  to  enforce  the  specific 
performance  of  this  contract,  it  was  HELD — 

That  this  was  a  positive  agreement  on  the  part  of  the  testator  to  send  to  com- 
plainants, to  cover  their  advances  to  him,  his  crops  of  wheat,  tobacco  and 
corn,  which  would  be  marketable  in  the  year  1847  ;  and  also,  the  wheat 
crop  seeded  in  that  year.  And  that  this  court  would  enforce  its  specific  ex- 
ecution. 

That  the  Ken  founded  on  the  relation  of  the  parties,  as  factor  and  principal,  would 
not  apply  to  this  case  ;  that  lien  being  merely  the  right  to  retain  a  thing,  of 
which  the  party  retaining  must  have  either  the  actual  or  constructive  posses- 
sion. The  plaintiffs'  title  to  relief,  therefore,  depends  upon  the  contract  es- 
tablished by  the  letters  of  the  testator,  and  the  facts  appearing  by  the  plead- 
ings. 

Courts  of  equity  do  not  enforce  the  specific  performance  oC  contracts  relating 
to  personal  property,  with  the  same  facility  and  universality  as  those  relating 
to  real  estate  :  because,  in  the  former  case,  courts  of  law  usually  afford  a 
complete  remedy. 

But  whenever  a  violation  of  the  contract  cannot  be  correctly  estimated  in 
damages,  or  wherever,  from  the  nature  of  the  contract,  a  specific  performance 
is  indispensable  to  justice,  a  court  of  equity  will  not  be  deterred  from  inter- 
fering, because  personal  property  is  the  subject  of  the  agreement. 
The  expenses  in  getting  the  crops  ready  for  market  should  be  paid  out  of  the 
proceeds  of  sale. 

[This  bill  was  filed  for  the  specific  performance  of  a  contract 
entered  into  by  the  defendant's  testator,  Robert  W.  Bowie,  of 
Prince  George's  county,  with  the  complainants,  trading  under 
the  firm  of  John  Sullivan  and  Sons,  in  Baltimore.  The  com- 
plainants agreed  to  become  the  agents  of  the  deceased  for  the 
sale  of  his  crops ;  to  advance  money,  and  to  accept  his  drafts, 


60  HIGH  COURT  OF  CHANCERY. 

to  secure  the  payment  of  which  the  deceased  pledged  his  crops 
then  on  hand,  and  the  growing  crops  of  the  year  1847,  and  died 
in  January,  1848.  Large  advances  were  made  by  the  complain- 
ants on  the  faith  of  this  arrangement,  to  cover  which,  the  pro- 
duce received  by  them  at  the  time  of  his  death  was  greatly  in- 
sufficient, leaving  due  $2782.  The  defendant  took  out  letters 
testamentary,  and  possessed  himself  of  the  corn  and  tobacco 
crops  of  the  year  1847,  which  were  still  on;  hand.  The  com- 
plainants contended,  that,  by  virtue  of  this  contract,  they  were 
entitled  to  a  lien  on  the  crops  then  in  the  hands  of  the  defend- 
ant, as  well  as  on  the  wheat  crop  sown  in  the  fall  of  the  year 
1847.  The  evidence  of  the  contract  consisted  principally  of 
letters  written  by  the  deceased  to  the  complainants,  in  the  latter 
part  of  the  year  1847,  wherein  he  pledged  himself  to  indemnify 
the  latter  for  their  advances  and  liabilities  made  and  incurred 
for  him,  by  forwarding  to  them  his  growing  crops  of  that  year, 
which  they  were  to  sell,  and  retain  out  of  the  proceeds  sufficient 
to  satisfy  the  debt  due  to  them.  The  whole  claim  was  resisted 
on  the  ground  that  the  complainants  were  in  no  better  condition 
as  to  the  crops  than  other  creditors  of  the  deceased,  and  it  was 
insisted  that  in  no  event  could  it  include  the  wheat  crop  seeded 
in  the  year  1847,  as  the  only  crops,  the  growth  of  that  year 
which  had  come  into  the  defendant's  hands,  were  the  corn  and 
tobacco.  It  was  also  urged,  that  the  lien  of  the  complainants, 
if  they  had  any,  should  be  subject  to  the  expenses  incurred  in 
getting  the  crops  to  market.  It  was  stated,  however,  in  the 
course  of  the  argument  by  the  solicitors,  that  on  the  principles 
of  law  applicable  to  the  case  being  settled  by  the  court,  there 
would  be  no  difficulty  in  adjusting  the  terras  of  the  decree  by 
agreement. 

The  Chancellor  thought,  that  the  facts  of  the  case  showed  a 
positive  engagement  on  the  part  of  the  deceased  to  send  to  the 
complainants,  for  the  purpose  of  covering  their  advances  to  him 
his  crops  of  wheat,  tobacco  and  corn,  which  would  be  market- 
able in  the  year  1847,  as  well  as  the  wheat  crop  seeded  in  that 
year.  And  as  to  the  question  whether  the  complainants  had  a 
standing  in  court  to  enforce  a  specific  execution  of  the  agree- 
ment, he  said  :] 


SULLIVAN  VS.   TUCK.  61 

THE  CHANCELLOR  : 

If  the  case  is  to  be  governed  by  the  principles  applicable  to 
the  relation  of  factor  and  principal,  I  am  satisfied  the  complain- 
ants cannot  succeed,  as  the  lien  resulting  by  operation  of  la\v, 
from  that  relation,  cannot  be  extended  to  property  situated  as 
this  was,  at  the  period  of  the  death  of  Mr.  Bowie.  If  at  that 
time  the  property  had  been  in  the  hands  of  these  parties,  I 
incline  to  think,  that,  independently  of  contract,  and  looking 
alone  to  the  rights  resulting  from  the  usages  of  trade,  the  com- 
plainants would  have  been  entitled  to  retain  it,  not  only  for  the 
charges  and  advances  connected  with  the  disposition  of  this 
identical  property,  but  for  the  general  balance  due  the  complain- 
ants, growing  out  of  other  dealings  of  the  like  nature.  Story 
on  Agency ,  sec.  354. 

But  as  this  property  was  not,  either  actually  or  constructively, 
in  possession  of  these  complainants,  when  the  testator  died,  the 
lien  founded  upon  the  relation  of  the  parties  as  factor  and  prin- 
cipal, cannot  be  maintained  ;  that  lien  being  merely  a  right  to 
retain  a  thing,  of  which  the  party  retaining,  must  of  course  be 
in  possession,  it  being  impossible  to  predicate  the  right  to  re- 
tain that  of  which  the  party  has  not  the  actual  or  constructive 
possession.  Story,  sec.  361. 

The  plaintiffs'  title  to  relief,  then,  must  depend,  not  upon  the 
mere  operation  of  law,  independently  of  contract,  but  upon  the 
contract  of  the  parties,  as  shown  by  the  letters,  and  the  facts 
appearing  by  the  pleadings. 

It  is  very  evident  to  me,  from  a  perusal  of  these,  that  Mr. 
Bowie  did  not  ask  or  desire,  nor  did  the  complainants  intend 
to  make  the  advances  in  cash,  and  accept  his  drafts  upon  his 
general  credit — on  the  contrary,  it  is  perfectly  manifest,  that 
all  the  transactions  between  them,  were  founded  upon  the  ex- 
press promise  on  the  part  of  Mr.  Bowie,  to  send  them  his  pro- 
duce, then  in  his  hands,  or  growing,  or  to  become  available  in 
1848.  There  is  nothing  in  his  letters  from  which  it  is  possible 
to  come  to  a  different  conclusion,  and  I  am  therefore  entirely 
satisfied,  if  I  refuse  the  relief  asked  by  this  bill,  I  defeat  the 
clear  design  and  intention  of  the  contracting  parties. 
6 


62  HIGH   COURT   OF  CHANCERY. 

It  is  to  be  borne  in  mind,  also,  that  this  is  not  a  contest  be- 
tween these  complainants,  and  the  creditors  of  Mr.  Bowie,  but 
between  them  and  his  personal  representative,  and  looking  to 
the  answers,  it  is  reasonable  to  conclude,  that  whatever  the  re- 
sult of  this  cause  may  be,  the  creditors  cannot  be  prejudiced, 
the  answer  expressing  the  belief,  that  the  assets  real  and  per- 
sonal will  be  sufficient  to  pay  the  claims  of  all  the  creditors — 
at  all  events,  as  it  does  not  appear  that  the  estate  of  Bowie 
is  insufficient  to  pay  his  debts,  the  rights  of  his  creditors  are 
not  supposed  to  be  involved.  Woods  et  al.  vs.  Fulton  and 
Starck,  4  H.  fy  J.,  329. 

The  question  then  is,  will  not  the  court  as  between  these  par- 
ties, specifically  execute  this  contract? 

In  the  case  of  Alexander  vs.  Ghiselin,  decided  by  the  Court 
of  Appeals  in  December  last,  it  was  said,  that  "it  would  be  novel 
doctrine  in  Maryland,  to  assert  that  the  Chancery  Court  cannot 
specifically  execute  a  contract  for  a  mortgage  or  other  equitable 
lien,  against  creditors" — and  surely  if  it  would  be  novel  and  un- 
tenable so  to  maintain  as  against  creditors,  how  much  more 
singular  and  untenable  would  it  be  to  assert,  that  the  court  can- 
not do  the  same  thing,  as  against  the  party  himself,  who  made 
the  contract! 

Even  where  such  contracts  rest  in  parol,  cases  are  not  want- 
ing in  which  the  courts,  with  regard  to  personal  property,  have 
decreed  their  execution.  A  number  of  such  cases  are  referred 
to  in  the  opinion  delivered  by  the  Court  of  Appeals  in  the  case 
already  mentioned. 

The  case  of  McMeche.n  vs.  Maggs,  4  H .  fy  J.,  432,  shows  the 
great  extent  to  which  the  courts  will  go,  to  enforce  these  parol 
agreements  for  mortgages  of  personal  property,  even  as  against 
subsequent  encumbrancers,  and  this  case  is  cited  with  appro- 
bation in  Alexander  vs.  Ghiselin.  But  it  is  said,  that  here  is 
no  contract  for  a  mortgage,  or  other  equitable  lien,  on  this  prop- 
erty ;  it  being,  as  insisted  by  the  defendant's  counsel,  no  more 
than  the  usual  engagement  between  principal  and  factor,  for 
advances  by  the  latter  on  property  to  be  consigned  him  for  sale 
by  the  former. 


SULLIVAN  VS.  TUCK.  63 

It  is  true,  the  testator  did  not  say,  if  you  will  pay  me  or  to 
my  order,  certain  sums  of  money,  I  will  give  you  a  mortgage 
on  my  produce ;  but  he  did  say,  if  you  will  do  so,  I  will  send 
you  the  produce  for  sale  for  your  security  and  reimbursement, 
and  the  advances  were  made  and  the  drafts  accepted,  upon  the 
faith  of  that  promise — and  these  declarations  and  promises  were 
made  in  writing,  so  as  to  relieve  the  case  from  the  operation  of 
the  statute  of  frauds,  even  if  the  statute  was  relied  upon,  which 
it  is  not. 

I  am  aware  of  no  principle  which  denies  to  this  court  the 
power  to  enforce  specifically  this  contract. 

That  contracts  respecting  personal  property  are  not  specifi- 
cally enforced  by  courts  of  equity,  with  the  same  facility  and 
universality  as  contracts  in  relation  to  real  estate,  is  true,  but 
this  is  not  on  account  of  their  personal  nature,  but  because  the 
courts  of  law  in  such  cases,  are  generally  competent  to  afford 
a  complete  remedy.  2  Story,  Equity,  sec.  717. 

But  when  the  circumstances  of  the  case  are  such  that  com- 
pensation in  damages,  will  not  give  the  party  a  complete  and 
satisfactory  remedy,  then,  though  the  contract  relates  to  personal 
estate,  a  court  of  equity  will  interpose,  and  grant  relief.  Ibid 
sec.  718. 

In  this  case,  I  am  of  opinion  it  would  be  impossible,  or  at 
all  events  extremely  difficult,  for  a  court  of  law  to  give  these 
complainants  adequate  damages,  that  is,  to  determine  and  meas- 
ure the  amount  of  damages  they  have  sustained,  or  may  sus- 
tain, by  the  omission  to  send  them  the  produce  in  question,  in 
fulfilment  of  the  contract.  If  the  personal  estate  of  Mr.  Bowie 
is  insolvent,  as  seems  .to  be  conceded,  then  the  plaintiffs  could 
only  recover  in  their  action  at  law  their  proportion  of  the  assets, 
and  when  this  should  be  done,  they  would  have  to  go  into 
equity  to  be  paid  the  balance,  out  of  the  real  estate. 

But  this  is  not  the  only  difficulty  to  the  recovery  of  a  perfect 
pecuniary  compensation  at  law  for  the  breach  of  this  contract, 
and  as  appears  by  the  cases,  unless  this  can  be  done,  courts  of 
equity  interfere  as  readily  when  the  contract  affects  personal  as 
real  estate.  Story's  Equity,  sec.  717 


64  HIGH  COURT  OF  CHANCERY. 

If  in  this  case  the  plaintiffs  should  bring  their  action  at  law, 
for  money  lent  and  advanced  or  paid,  laid  out  and  expended, 
for  the  use  of  the  defendant's  testator,  they  would  recover  the 
amount  which,  upon  the  evidence,  they  could  show  they  had  so 
lent  and  advanced  or  expended.  That  would  be  the  measure 
of  damages.  But  if  the  action  was  brought  upon  the  special 
contract,  to  send  the  produce  of  defendant's  testator  to  the 
plaintiffs  for  sale,  as  his  factors,  to  secure  and  reimburse  them 
for  advances  made  in  consideration  of  his  promise  to  do  so,  the 
measure  of  damages  for  the  failure  to  send  would  be  the  amount 
which  the  property  would  have  commanded  in  the  market,  at  the 
time  stipulated  in  the  contract. 

Now  this  would  have  been  an  inquiry  attended  with  some 
difficulty,  especially  as  the  contract  does  not  fix  the  precise 
period,  when  the  crops  were  to  have  been  sent  forward.  The 
language  of  the  letter  of  the  eighth  of.  November,  1847,  is,  "my 
crops  to  go  into  your  hands  in  the  spring,  and  during  the  next 
year."  The  value  of  the  crops  would  of  course  have  depended 
upon  their  quantity  and  quality  which  must  have  been  ascer- 
tained by  evidence  not  easily  accessible  to  the  parties,  and  then 
the  amount  for  which  they  would  have  sold,  must  have  been 
determined  by  the  market  price,  at  the  time  fixed  for  their  de- 
livery, and  as  no  definite  time  was  fixed  for  that  purpose,  it  is 
not  very  clearly  seen,  how  a  proper  standard  for  measuring  the 
damages,  could  have  been  arrived  at. 

Besides,  in  an  action  upon  the  special  contract,  the  plaintiffs 
would  have  been  entitled  to  recover  by  way  of  damages  for  the 
commissions  which  they  would  have  earned  upon  the  sale  of 
the  property,  thus  complicating,  by  an  additional  item,  the  ele- 
ments out  of  which  the  verdict  of  the  jury  must  have  been  con- 
stituted. 

Wherever  a  violation  of  the  contract  cannot  be  correctly  es- 
timated in  damages,  and  the  calculation  is  to  proceed  upon 
conjecture,  or  wherever  from  the  nature  of  the  contract,  a  speci- 
fic performance  is  indispensable  to  justice,  this  court  will  not 
be  deterred  from  interfering,  because  personal  property  is  the 
subject  of  the  agreement.  Jldderlyvs.  Dixon,  1  Sim.  fy  Stu., 
607  ;  Buxton  vs.  Lister,  3  Jltk.  383. 


SULLIVAN  VS.  TUCK.  65 

And  as  from  a  careful  consideration  of  this  contract  it  ap- 
pears to  me,  a  court  of  law  would  not  be  able  to  furnish  a  com- 
plete and  satisfactory  remedy,  I  think  a  specific  execution  of 
the  agreement  should  be  decreed. 

It  is  stated  in  the  answer  of  the  defendant,  that  expenses 
have  necessarily  been  incurred  by  him  in  getting  the  crops  ready 
for  market,  and  he  insists  that  if  the  complainants  shall  be  ad- 
judged entitled  to  the  relief  they  seek,  those  expenses  should 
be  paid  out  of  the  proceeds  of  the  sales. 

My  first  impression  was  against  this  position,  but  upon  re- 
flection it  seems  to  me  to  be  well  taken.  It  was  his  duty  to 
complete  and  take  care  of  the  crop,  for  which  purpose  he  might 
employ  the  necessary  agents — Lee  vs.  Lee  and  Welch  6  G.  # 
«/.,  316 — and  I  can  see  no  good  reason  why  the  expenses  in- 
curred by  the  executor  in  the  discharge  of  this  necessary  duty, 
shall  not  be  deducted  from  the  proceeds  of  the  crops,  when  sold, 
like  the  freight  which  must  be  paid  upon  the  transportation  to 
market.  In  case  the  growing  crops  were  the  only  assets  in  the 
hands  of  an  executor,  which  is  a  state  of  things  which  might 
happen,  it  is  obvious  the  expenses  in  question  must  be  paid  out 
of  them,  or  not  paid  at  all. 

I  think,  therefore,  the  expenses  incurred  by  the  defendant,  as 
the  executor  of  Mr.  Bowie  in  getting  these  crops  ready  for  mar- 
ket, should  be  paid  out  of  the  proceeds  of  the  sales. 

There  is  a  small  item  in  the  complainants'  account,  for  com- 
missions on  advances,  which  as  it  formed  no  part  of  the  con- 
sideration upon  which  the  promise  of  the  deceased  was  made, 
cannot  be  regarded  as  a  special  charge  upon  the  crops.  In 
respect  of  that  item,  if  established,  the  complainants  can  only 
be  considered  as  general  creditors,  upon  a  footing  with  others. 

A  decree  was  passed  by  agreement  in  accordance  with  the 
foregoing  opinion,  and  allowing  the  complainants  their  costs  to 
be  paid  out  of  the  general  assets  of  the  estate  of  the  testator. 

[No  appeal  was  taken  from  this  decree.] 


6* 


66  HIGH  COURT  OF  CHANCERY. 


J 


JOHN  F.  WILSON 

vs.  )•      SEPTEMBER  TERM,  1847. 

MATTHEW    HARDESTY. 


[USURY CONSTITUTIONALITY  OF  THE    ACT  OF  1845,  CH.  352.] 

WHERE  a  party  goes  into  a  court  ofequity  to  ask  relief  against  an  usurious  mort- 
gage or  contract,  he  must  do  equity,  by  paying,  or  offering  to  pay,  the  prin- 
cipal sum,  with  legal  interest. 

When  the  legislature  transcends  its  authority,  the  courts  of  justice  in  the  dis- 
charge of  their  duties,  are  bound  to  pronounce  its  acts  void  :  but  this  high 
power  of  the  judiciary  should  be  exercised  with  great  caution,  and  only  when 
the  act  of  the  legislature  is  manifestly  beyond  the  pale  of  its  authority. 

Retrospective  laws  and  laws  divesting  vested  rights,  unless  ex  post  facto,  or  im- 
pairing the  obligation  of  contracts,  do  not  fall  within  the  provision  of  the 
constitution  of  the  United  States,  however  repugnant  they  may  be  to  the  prin- 
ciples of  sound  legislation. 

The  act  of  1845,  ch.  352,  as  affecting  pre-existing  contracts,  tainted  with  usury, 
is  neither  prohibited  by  the  constitution  or  bill  of  rights  of  this  State  ;  nor 
does  it  come  within  the  provision  contained  in  the  constitution  of  the  United 
States,  prohibiting  the  States  from  passing  ex  post/ado  laws,  and  laws  im- 
pairing the  obligation  of  contracts. 

[The  object  of  the  bill  in  this  case  was  the  sale  of  certain 
premises  which  had  been  mortgaged  to  the  complainant  by  the 
defendant,  to  secure  to  the  former  the  payment  of  $500  00,  with 
interest  from  the  15th  October,  1840.  The  defendant  pleaded 
usury,  stating  that  the  sum  actually  advanced  to  him  on  the  day 
of  the  execution  of  the  mortgage  was  only  $470  00,  and  prayed 
"judgment,  if  he,  the  defendant,  ought  to  be  charged  with  the 
debt,"  &c.  The  complainant  confessed  the  facts  of  the  plea, 
and  consented  to  a  decree  for  the  sum  actually  due.  The  Chan- 
cellor deemed  this  a  waiver  of  objection  to  the  sufficiency  of  the 
plea,  under  the  act  of  1845,  chapter  352,  which  limits  the  de- 
fence to  the  excessive  usury,  and  makes  it  the  duty  of  the  court, 
after  ascertaining  the  amount  fairly  due  for  principal  and  inter- 
est, to  decree  accordingly.  Having  stated  the  case,  he  deliv- 
ered his  opinion  as  follows:] 


WILSON  VS.  HARDESTY.  67 

THE  CHANCELLOR  : 

The  question,  and  the  only  question  in  this  case,  relates  to  the 
validity  of  the  act  of  1845,  as  a  constitutional  exercise  of  legis- 
lative power,  so  far  as  concerns  pre-existing  contracts  and  en- 
gagements tainted  with  usury. 

The  defendant  insists,  that  inasmuch  as  the  act  of  1704  de- 
clares that  all  bonds,  contracts  and  assurances  whatsoever,  made 
after  the  time  therein  limited,  whereupon,  or  whereby,  more 
than  the  rate  of  interest  fixed  by  that  act  is  reserved,  shall  be 
utterly  void,  it  follows  that  the  legislative  authority  is  insuffi- 
cient to  give  such  contracts  validity  to  any  extent  whatever. 

The  argument  is,  that  the  present  mortgage  is  an  absolute 
nullity,  and  any  attempt  on  the  part  of  the  legislature  to  give  it 
efficacy  to  any  extent,  or  to  abridge  the  right  of  the  defendant 
to  defend  himself  against  it,  is  equivalent  to  the  legislative  cre- 
ation of  a  contract,  out  of  elements  having  no  legal  existence. 
But,  notwithstanding  the  language  of  the  act  of  1704  is  so 
strong,  it  is  very  certain,  that  contracts  within  its  provisions  are 
not,  under  all  circumstances,  treated  as  merely  void — for  it  is 
settled,  that  if  a  party  goes  into  a  court  of  equity,  asking  relief 
against  an  usurious  mortgage  or  contract,  he  must  do  equity  by 
paying,  or  offering  to  pay,  the  principal  sum  and  legal  interest. 
Trumbo  vs.  Blizzard,  5  Gill  fy  Johnson,  18.  Nay,  he  is  not 
even  entitled  to  a  discovery  as  to  the  usury,  unless  he  offers  to 
pay  the  principal  debt,  and  legal  interest.  Jordan  vs.  Trumbo, 
6  G.  Sf  /.,  103.  Courts  of  equity,  therefore,  have  undertaken, 
upon  a  principle  which  seems  to  have  met  the  approbation  of 
the  community,  for  it  is  one  long  since  established,  to  give  a 
reasonable  sanction  to  contracts  affected  by  usury,  by  refusing 
to  relieve  a  party  against  them,  unless  he  would  himself  do  that, 
which  the  moral  obligation  arising  from  the  receipt  and  appro- 
priation to  his  own  use  of  the  money  of  another  required  him 
to  do. 

There  can  be  no  doubt,  that  if  the  legislative  department  of 
the  government  transcends  its  authority,  the  courts  of  justice 
are  bound,  in  discharge  of  the  functions  properly  appertaining 
to  them,  to  pronounce  its  acts  void.  Crane  vs.  Meginnis,  1  Gill 
$  Johns.,  463. 


68  HIGH  COURT  OF  CHANCERY. 

But  it  is  equally  clear  that  this  high  exercise  of  power  on  the 
part  of  the  judiciary  should  be  exercised  with  great  caution,  and 
only  when  the  act  of  the  legislature  is  manifestly  beyond  the 
pale  of  its  authority,  for  that  department  is  the  great  depositary 
of  the  power  of  the  government. 

The  Chancellor  is  unable  to  perceive  upon  what  principle  this 
law  is  to  be  condemned.  There  is  certainly  no  provision  in 
the  constitution  and  bill  of  rights  of  this  state,  which  prohibits 
the  passage  of  such  a  law,  and  it  is  impossible,  it  is  thought,  to 
bring  it  under  the  restraining  authority  of  the  constitution  of 
the  United  States,  which  does  not  prohibit  the  states  from 
passing  retrospective  laws  generally,  but  only  ex  post  facto 
laws,  and  laws  impairing  the  obligation  of  contracts.  Charles 
River  Bridge  vs.  Warren  Bridge  etal.,  14  Peters,  339. 

It  is  clearly  settled  by  the  high  authority  of  th*e  Supreme 
Court  of  the  United  States,  that  retrospective  laws,  and  laws 
divesting  vested  rights,  unless  ex  post  facto,  or  impairing  the  ob- 
ligation of  contracts,  do  not  fall  within  the  provision  in  the  con- 
stitution of  the  United  States,  however  repugnant  they  may  be 
to  the  principle  of  sound  legislation.  Colder  vs.  Bull,  3  Dallas, 
386  ;  Slatterlee  vs.  Matthewson,  2  Peters,  413 ;  Watson  vs. 
Mercer,  8  Peters,  88. 

The  law  under  consideration,  is  certainly  not  an  ex  post  facto 
law,  as  laws  of  that  character  relate  only  to  criminal  proceed- 
ings ;  nor  is  it  a  law  impairing  the  obligation  of  contracts,  for 
so  far  from  impairing  the  obligation  of  the  contract,  it  gives  it 
a  force  and  efficacy  which  it  did  not  possess  before.  That  laws 
of  this  description  are  not  prohibited  by  the  constitution  of  the 
United  States,  was  most  clearly  decided  in  the  case  of  Watson 
et  al.  vs.  Mercer,  8  Peters,  89,  which  affirmed  the  validity  of  a 
law  of  Pennsylvania,  curing  the  defective  acknowledgment  of  a 
deed  made  by  a  feme  covert,  passed  after  a  recovery  by  the 
heirs  of  the  wife,  upon  the  ground  of  the  defect,  healed  by  the 
subsequent  act. 

But  it  is  not  only  in  courts  of  equity  that  the  force  of  this 
moral  obligation,  which  has  the  effect  when  it  can  be  applied, 
of  moderating  the  rigor  of  the  laws  against  usury,  has  been  felt, 


WILSON  VS.  HARDESTY.  69 

for  even  in  the  courts  of  law,  it  has  been  decided  that  an  action 
of  trover  cannot  be  maintained  for  goods  mortgaged  to  secure 
an  usurious  debt,  unless  the  plaintiff  has  tendered  the  amount 
actually  loaned.  Lucas  vs.  Latour,  6  Har.  fy  Johns.,  100. 

There  can  be  no  doubt,  then,  that  if  the  present  defendant 
was  seeking,  either  in  a  court  of  law  or  equity  for  relief  against 
this  mortgage,  he  could  only  succeed  by  paying  or  offering  to 
pay  the  amount  he  actually  received  from  his  creditor,  together 
with  the  legal  interest  thereon,  and  consequently  the  whole 
effect  of  the  act  of  assembly  is  to  apply  the  same  equitable  prin- 
ciple to  the  relation  which  the  parties  bear  to  each  other  in  this 
case.  If  the  mortgagor  was  the  plaintiff,  and  the  mortgagee 
defendant,  either  at  law  or  in  equity,  relief  would  only  be  grant- 
ed upon  the  equitable  principle,  of  paying  the  sum  borrowed 
with  legal  interest.  Now,  has  not  the  legislature  the  constitu- 
tional power  to  say  that  the  same  rule  of  honesty  shall  be  ob- 
served, when  the  position  of  the  parties  is  reversed,  for  to  that 
extent,  and  no  further  does  the  act  go.  In  this  view  of  the 
case,  it  would  '  seem  to  be  no  more  than  the  mere  exercise  of 
the  law  making  power,  over  the  subject  of  remedies,  their  right 
to  regulate,  which  cannot  be  disputed. 

Upon  the  whole,  my  opinion  is,  that  the  act  is  not  unconsti- 
tutional, and,  therefore,  I  shall  pass  a  decree  for  the  payment  of 
the  sum  admitted  to  be  actually  and  fairly  due ;  or  for  a  sale  of 
the  mortgaged  property,  in  case  such  payment  is  not  made  in  a 
reasonable  time. 

[No  appeal  was  taken  from  this  decree,  but  in  a  subsequent 
case,  the  Court  of  Appeals  affirmed  the  constitutionality  of  the 
act  of  1845,  ch.  352,  with  reference  to  pre-existing  usurious 
contracts.  ] 


70  HIGH   COURT  OF   CHANCERY 


BENJAMIN  S.  CLARK  ET  AL. 

vs.  ^>     SEPTEMBER  TERM,  1847. 

CHARLES  G.  RIDGELY  ET  AL. 


.1 


[RECEIVER.] 

A  RECEIVER,  in  strictness,  should  not  be  appointed  before  the  coming  in  of  the 
answers  ;  and,  although  this  rule  has  been  broken  through,  yet  the  grounds 
which  will  induce  the  court  to  disregard  it,  must  be  very  strong  and  special. 

A  receiver  will  not  be  appointed  unless  it  appears  that  such  a  measure  is  re- 
quired to  preserve  the  property  from  danger  of  loss. 

When  an  application  by  bill  or  petition  is  made  to  the  court  to  appoint  a  re- 
ceiver, a  sufficient  foundation  must  be  laid  by  stating  the  fact,  which  will  au- 
thorize the  interference  of  the  court,  in  this  form. 

When  a  bill  sets  forth  the  complainants'  title,  and  stated  that  a  party  had 
wrongfully  taken  possession  of  the  property,  but  did  not  state  that  such  party 
was  insolvent  or  unable  to  account  for  the  same,  or  that  the  rents  and  profits 
were  in  danger  of  being  lost,  the  court  refused  to  appoint  a  receiver. 

[The  bill  in  this  case  stated  that  Sater  P.  Walker,  by  deed 
of  the  29th  of  October,  1830,  conveyed  a  certain  lot  of  ground 
in  the  city  of  Baltimore  to  John  W.  Osgood,  (believed  to  be  a 
non-resident,)  in  trust  for  Catharine  Ann  Walker,  wife  of  the 
grantor,  for  her  life,  with  remainder  to  the  children  of  the 
grantor,  in  the  deed  named,  equally,  to  receive  the  rents  and 
profits  to  their  separate  use ;  and  after  their  deaths,  to  the 
children  of  each  respectively,  in  fee  simple,  and  for  the  want  of 
such  children,  to  the  right  heirs  of  the  grantor.  The  bill 
further  stated,  that  the  wife  of  the  said  Sater  P.  Walker  died 
in  the  year  eighteen  hundred  and  forty- six,  whereby  the  said 
children  became  entitled,  under  the  deed,  to  receive  the  rents 
and  profits  of  said  property ;  that  they  were  all  married  ;  that 
the  grantor,  notwithstanding  the  conveyance  aforesaid,  has 
taken  possession  of  the  property  since  the  death  of  his  wife, 
and  appropriates  the  profits  to  his  own  use  ;  and  that  it  would 
be  to  the  advantage  of  all  parties  to  have  the  same  sold,  and 
the  proceeds  invested  for  their  benefit.  The  bill  then  prayed 
for  the  appointment  of  a  receiver  to  take  charge  of  said 
property  for  the  benefit  of  the  parties  entitled  ;  and  for  a  sale. 


CLARK  VS.  RIDGELY.  71 

The  case  was  referred  to  the  Chancellor,  before  the  answers  of 
the  defendants  were  filed,  who  said  :] 

THE  CHANCELLOR  : 

The  bill  in  this  case  prays  for  the  appointment  of  a  receiver, 
and  the  application  is  made  to  the  court  prior  to  the  coming  in 
of  the  answers,  and  also  prior  to  the  time  when  the  defendants 
by  the  rules  of  the  court  can  be  considered  as  in  default  for  not 
answering.  In  strictness,  a  receiver  should  not  be  appointed 
until  after  the  answer,  and  although  the  rule  has  been  broken 
through,  that  such  an  appointment  will  not,  under  any  circum- 
stances, be  n\ade  before  answer  ;  the  grounds  which  will  induce 
the  court  to  disregard  the  old  rule,  must  be  very  strong  and 
special.  It  must  appear,  that  the  claimant  has  a  title  to  the 
property,  and  the  court  must  be  satisfied  by  affidavit,  that  a 
receiver  is  necessary  to  preserve  the  property  from  loss.  2, 
Daniels'  Ch.  Prac.,  1974,  and  note ;  Bloodgood  vs.  Clark,  4 
Paige,  574. 

Indeed  it  is  believed,  the  authority  and  duty  of  the  court  to 
appoint  or  not  appoint  a  receiver,  depends  upon  the  question 
whether  the  property  is  or  is  not  in  danger  in  the  hands  of  the 
party  who  may  at  the  time  be  in  possession.  As  was  said  by 
the  court  in  the  case  of  the  Orphans  Asylum  Society  vs.  M'  Car- 
ter et  al.  in  1  Hopkins,  422,  "a  receiver  is  proper  if  the  fund 
is  in  danger,  and  this  principle  reconciles  the  cases  found  in 
the  books.  There  is  no  case  in  which  the  court  appoints  a  re- 
ceiver merely  because  the  measure  can  do  no  harm." 

In  conformity  with  what  seems  to  me  the  established  rule 
upon  this  subject,  that  a  receiver  will  not  be  appointed  unless 
it  appears  that  such  a  measure  is  required  to  preserve  the  pro- 
perty from  danger  of  loss,  the  late  Chancellor  remarked  in 
Hannah  K.  Chase's  case,  1  Bland,  213,  "but  unless  she  [the 
complainant]  has  also  shown  that  the  rents  and  profits  are  in 
imminent  danger,  a  receiver  cannot  be  appointed."  And  in 
the  case  of  Lloyd  vs.  Passingham,  16,  Vesey,  59 — 70,  Lord 
Eldon,  speaking  of  the  reluctance  with  which  the  court  inter- 
feres by  appointing  a  receiver,  said,  "the  court  must  not  only 


72  HIGH  COURT   OF  CHANCERY. 

be  satisfied  of  the  existence  of  the  fraud,  but  it  must  be  morally 
sure,  that  upon  the  hearing  of  the  cause,  the  party  would,  upon 
the  circumstances,  be  turned  out  of  possession  ;  and  not  only 
that,  but  it  must  see  some  danger  to  the  intermediate  rents  and 
profits." 

It  seems  to  me,  therefore,  indispensably  necessary,  that  when 
an  application  is  addressed  to  the  court,  to  appoint  a  receiver, 
either  by  the  bill,  or  by  petition  subsequently  filed,  that  a  suffi- 
cient foundation  must  be  laid,  by  stating  the  facts  which  will 
authorize  the  interference  of  the  court  in  this  form.  Tomlinson 
vs.  Ward,  2  Cown,  396. 

The  bill  in  this  case,  after  stating  the  title  of  the  complain- 
ants, and  showing  their  interest  in  the  property,  which  it  may 
be  conceded  would  be  sufficient  to  authorize  the  appointment 
of  a  receiver,  if  the  property  were  alleged  to  be  in  danger,  pro- 
ceeds to  set  forth  the  grounds  upon  which  the  application  rests, 
which  are,  that  after  the  death  of  Catharine  Ann  Walker,  the 
tenant  for  life,  the  said  Sater  P.  Walker  wrongfully  .took  pos- 
session of  the  said  property,  and  ever  since  has  appropriated 
the  rents  and  profits  thereof  to  his  own  private  purposes,  and 
has  always  refused,  though  urgently  requested  so  to  do,  to  pay 
over  the  rents  according  to  the  express  intention  of  the  said 
deed  of  trust,  so  that  the  chief  and  only  object  of  said  deed  is 
entirely  defeated  and  annulled.  But  the  bill  does  not  state 
that  Walker,  the  party  alleged  to  be  in  the  wrongful  possession 
of  the  property  and  in  the  enjoyments  of  the  rents  and  profits, 
is  insolvent,  or  unable  to  account  for  the  same,  or  that  without 
the  appointment  of  a  receiver,  these  rents  and  profits  are  in 
danger  of  being  lost  to  those  who  may  ultimately  appear  to  be 
entitled  to  them ;  and  the  absence  of  any  such  averment,  in 
my  opinion,  is,  upon  the  principles  which  govern  this  court  in 
applications  like  the  present,  fatal  to  the  success  of  the  appli- 
cation, which  consequently  cannot  be  allowed. 

[No  appeal  was  taken  from  this  order.] 


GLENN  VS.  BAKER.  73 


JOHN  GLENN,  TRUSTEE  OF 
BENJAMIN  CHILDS 

vs.  J-      SEPTEMBER  TERM,  1847. 

WILLIAM  BAKER  AND  BEN- 
JAMIN CHILDS. 

[INSOLVENT  LAWS — UNDUE  PREFERENCE — RULES  OF  EVIDENCE.] 

To  avoid  a  deed  under  the  acts  of  1812,  ch.  77,  and  1816,  ch.  221,  it  is  neces- 
sary to  show,  not  only  that  an  undue  and  improper  preference  was  given  by 
the  debtor,  but  also,  that  this  was  done  with  a  view  or  under  an  expectation 
of  taking  the  benefit  of  the  insolvent  laws. 

Such  intent  may  be  established  by  facts  and  circumstances,  as  in  other  cases. 

The  fact  that  a  party,  when  he  executed  the  deed,  could  not  apply  for  the  ben- 
efit of  the  insolvent  laws,  for  want  of  the  residence  required,  to  bring  him 
within  their  provisions,  is  a  strong  circumstance  to  show  that  such  was  not 
his  view  and  expectation  at  that  time. 

The  facts  of  this  case  are  distinguished  from  those  of  Dulaney  vs.  Hoffman,  7 
Gill  and  Johns.,  170. 

It  is  an  established  rule  of  evidence  in  this  state,  that  the  answer  of  one  defend- 
ant, in  chancery,  is  not  evidence  against  the  other  defendants. 

The  answer  of  one  defendant,  when  responsive  to  the  bill,  is  evidence  against 
the  plaintiff  m  favor  of  the  other  defendants. 

Where  the  rights  of  the  insolvent  are  identically  the  same,  whether  the  deci- 
sion passes  one  way  or  the  other,  he  would  be  a  competent  witness  for  eith- 
er party. 

[In  the  year  1833,  Benjamin  Childs,  one  of  the  original  de- 
fendants, (since  deceased,)  who  had  resided^in  Pennsylvania, 
for  several  years,  removed  into  this  state,  and  engaged  in 
mercantile  business  in  Baltimore.  On  the  fourth  of  December, 
of  the  same  year,  and  but  a  few  months  afterwards,  finding  him- 
self in  embarrassed  circumstances,  he  executed  to  the  defendant, 
Baker,  a  deed  of  all  his  estate  of  every  description,  intrust,  in 
the  first  place  to  pay  the  necessary  expenses  of  executing  the 
trust  and  five  per  cent,  commission  on  all  moneys  received  by 
the  trustee,  in  virtue  thereof;  secondly,  to  pay  in  full,  certain 
specified  debts ;  thirdly,  to  pay  in  full,  or  rateably  in  case  of 
a  partial  deficiency  of  the  trust  fund,  such  of  the  creditors  of 
the  grantor  as  should  in  a  specified  time  assent  to  the  terms  of 
the  deed,  and  release  all  demands  against  him  to  the  day  of  its 
date  ;  fourthly,  to  the  use  of  the  other  creditors  of  the  grantor  ; 
7 


74  HIGH   COURT  OF  CHANCERY. 

and  fifthly  to  pay  the  surplus  to  the  grantor,  his  executors,  ad- 
ministrators or  assigns.  At  December  session,  1833,  Childs  ap- 
plied to  the  legislature  for  a  special  act,  which  was  passed  on  the 
27th  February,  1834,  authorising  the  insolvent  commissioners 
to  extend  to  him  the  benefit  of  the  insolvent  laws  without  re- 
quiring the  usual  proof  of  a  two  years  residence  in  the  state. 
His  application  under  this  act  was  made  on  the  10th  March  fol- 
lowing, and  the  complainant  was  appointed  his  permanent  trus- 
tee. Sundry  creditors  of  Childs  assented  to  the  terms  of  the 
deed,  and  in  consideration  of  the  provisions  made  in  it  for  the 
payment  of  their  debts,  released  and  discharge  him  therefrom. 
It  appeared  from  the  proof  that  the  said  Childs  was  insolvent 
when  he  removed  into  the  state  and  continued  so  down  to  the 
time  when  the  deed  was  executed,  prior  to  which  time  there 
were  suits  and  judgments  against  him. 

The  bill  was  filed  by  the  complainant  to  have  this  deed  set 
aside  as  fraudulent  under  the  insolvent  laws,  it  having  been  made 
in  contemplation  of  applying  for  their  benefit.  The  answers 
denied  that  Childs  at  the  time  of  executing  said  deed  intended 
applying  for  the  benefit  of  the  insolvent  laws,  or  that  he  knew 
himself  to  be  insolvent,  and  the  separate  answer  of  Childs  sta- 
ted his  ignorance,  at  the  time  of  executing  the  deed,  of  the  pos- 
sibility of  his  obtaining  a  special  act  of  the  legislature  in  his 
favor. 

The  Chancellor,  after  stating  the  facts  of  the  case,  referred 
to  the  cases  of  Heckley  vs.  Farmers  and  Merchants'  Bank,  5 
G.fyJ., 377,  and  Crawford^  Sellman  vs.  Taylor, 6  G.  #  J.,  332, 
to  show  that  the  meaning  of  the  acts  of  1812,  ch.  77,  and  1816, 
ch.  221,  making  void  any  deed,  &c.,  to  a  creditor,  made  by  any 
person  with  a  view,  or  under  an  expectation  of  being  or  becom- 
ing an  insolvent  debtor,  and  with  an  intent  thereby  to  give  an 
undue  and  improper  preference  to  such  creditor,  was,  that  the 
party  executing  the  deed,  shall  at  the  time,  "intend  to  take  the 
benefit  of  the  insolvent  laws."  He  said  it  was  necessary  to 
show,  not  only  that  an  undue  and  improper  preference  was  given 
by  the  debtor,  but  also  that  this  was  done  "with  a  view  or  un- 
der an  expectation  of  taking  the  benefit  of  the  insolvent  laws," 


GLENN  VS.  BAKER.  75 

and  as  to  whether  this  had  been  done  in  this  case  he  said  :  "It 
is  not  contended  in  this  case,  nor  could  it  be,  that  there  is  any 
direct  evidence,  that  Childs  at  the  date  of  the  deed,  intended 
to  make  application  for  the  benefit  of  the  insolvent  laws ;  but 
it  is  said,  that  such  intention  may  be  established  by  facts  and 
circumstances  as  in  other  cases,  and  the  case  of  Dulaney  vs. 
Hoffman^  7  Gill  Sf  Johns.,  170,  is  referred  to  in  support  of  the 
proposition.  There  can  be  no  doubt  that  such  is  the  rule,  and 
the  inquiry  then  is,  whether  the  facts  and  circumstances  of 
this  case  are  sufficiently  strong  to  make  out  the  intent.] 

THE  CHANCELLOR  : 

Now,  whether  the  answer  of  Childs  is  or  is  not  evidence 
against  the  plaintiff,  there  can  be  no  doubt  that  the  burden  of 
proof  is  upon  him,  and  that  he  can  get  no  decree  invalidating 
this  deed,  unless  he  can  make  out  by  satisfactory  evidence,  that 
Childs,  on  the  4th  December  1833,  the  date  of  its  execution 
intended  to  take  the  benefit  of  the  insolvent  laws;  that  such 
was  his  view  and  expectation  at  that  time. 

Now,  the  first  difficulty  in  the  way  of  the  plaintiff,  and  it 
seems  to  me  a  formidable  one,  is,  that  Childs  when  he  execu- 
ted the  deed  by  which  the  alleged  preference  was  given,  could 
not  apply  for  the  benefit  of  the  insolvent  laws,  for  want  of  the 
residence  required,  to  bring  him  within  their  provisions.  He 
had  then  been  living  but  a  short  time  in  Maryland,  and  many 
months  must  elapse,  before  the  relief  contemplated  by  those  laws 
could  be  extended  to  him.  How  it  may  be  asked  can  it  be  said 
that  he  executed  the  deed  with  a  view,  and  under  an  expecta- 
tion of  taking  the  benefit  of  laws,  the  provisions  of  which  he 
was  in  no  condition  to  enjoy,  because  of  the  indispensable  pre- 
requisite of  a  two  years  residence  which  he  did  not  possess, 
It  is  true,  (though  he  denies  it  in  his  answer,)  he  may  have 
known  that  special  acts  of  insolvency  were  sometimes  granted, 
and  that  laws  were  occasionally  passed,  dispensing  with  some 
of  the  conditions  upon  which  the  general  system  was  admin- 
istered ;  and  he  may  have  contemplated  an  application  to  the 
legislature  to  dispense  in  his  case,  with  the  qualification  of  resi- 


76  HIGH  COURT  OF  CHANCERY. 

dence ;  but  this  seems  to  me  to  be  a  strained  and  unnatural 
view  of  the  motives  which  probably  influenced  him  at  the  time, 
and  one  which  could  not  safely  be  adopted,  unless  supported  by 
positive  proof,  or  pregnant  circumstances.  This  moreover  is 
not  the  allegation  of  the  bill,  which  avers,  that  the  deed  was 
made  by  Childs,  "when  he  knew  himself  to  be  insolvent,  and 
contemplated  applying  for  the  benefit  of  the  insolvent  laws  of 
Maryland."  Such  an  averment  appears  to  me,  to  be  inappli- 
cable to  a  party,  to  whom  the  law  in  its  then  state,  did  not  ex- 
tend. 

Conceding  that  the  evidence  in  this  case  does  show,  that 
Childs  was  in  fact  in  insolvent  circumstances  at  the  date  of  the 
deed,  and  that  he  knew  himself  to  be  so,  (though  this  is  like- 
wise denied  by  his  answer,)  there  is  nevertheless  not  wanting 
evidence,  independently  of  the  fact,  that  he  was  not  entitled  at 
that  time  to  apply  for  the  benefit  of  the  insolvent  laws,  going 
to  repel  the  presumption  that  he  contemplated  such  an  alterna- 
tive. 

There  is  not  such  a  resemblance  between  the  circumstances 
of  this  case  and  the  case  of  Dulaney  vs.  Hoffman,  relied  upon 
by  the  counsel  for  the  plaintiff,  as  would  make  the  judgment 
pronounced  in  the  one,  a  safe  precedent  to  be  followed  in  the 
other.  The  points  of  difference  between  them,  if  not  numer- 
ous, are  strong  and  palpable  and  present  abundant  room  for 
a  different  determination.  In  Dulaney  vs.  Hoffman,  there  ex- 
isted no  impediment  to  an  immediate  application,  by  the  parties 
making  the  obnoxious  preference,  for  the  benefit  of  the  insol- 
vent laws,  and  in  point  of  fact  their  application  pressed  rapidly 
upon  the  heels  of  the  transfer.  In  this  case,  at  the  time  of  the 
transfer  complained  of,  the  party  making  it  was  in  no  condition 
to  apply  at  all,  nor  did  he  make  his  application  for  more  than 
three  months  afterwards.  In  that  case  there  was  no  attempt 
whatever  to  compromise  with  or  appease  the  unpreferred  credi- 
tors, a  circumstance  of  so  much  weight,  as  to  be  more  than 
once  mentioned  by  the  Court  of  Appeals  in  delivering  their 
opinion.  •  In  this,  there  was  not  only  an  effort  to  adjust  their 
other  debts,  but  several  of  the  creditors  who  were  not  preferred, 


GLENN  VS.  BAKER.  77 

actually  released  the  petitioner  upon  the  terms  specified  in  the 
deed.  In  that  case  the  debts  due  to  the  favored  creditors  had 
not  then  matured,  and  were  at  the  time  of  the  transfer  wholly 
unprovided  for ;  whilst  in  this,  the  preferred  parties  held  collat- 
erals to  a  larger  nominal  amount  than  the  debts  due  them,  and 
might  therefore  be  regarded  as  preferred,  even  before  the  exe- 
cution of  the  deed.  In  that  case,  there  was  an  actual  transfer 
and  delivery  to  one  of  the  selected  creditors,  for  the  benefit  of 
himself,  and  others  similarly  situated,  of  the  entire  stock  in  trade 
of  the  insolvents,  with  directions  to  sell  the  same,  and  to  apply 
the  money  to  the  payment  exclusively  of  those  creditors,  with- 
out any  reference  whatever  to  the  rest ;  although  they  knew, 
that  many  of  them  must  necessarily  go  unsatisfied.  Whilst 
in  this,  though  a  preference  is  given  to  one  class,  the  deed  pro- 
fesses to  provide  for  others,  and  holds  out  inducements  to  them 
to  accede  to  its  provisions. 

These  differences  between  these  cases  are,  I  think,  suffi- 
ciently broad  and  distinct,  to  separate  them  by  a  well  defined 
line,  and  to  render  a  conclusion  perfectly  sound  as  to  the  one, 
altogether  erroneous  as  to  the  other. 

The  preceding  observations  have  been  made  without  refer- 
ence to  the  answer  of  Childs,  and  upon  the  hypothesis  that  his 
answer  cannot  be  read  as  evidence  against  the  complainant. 

If  the  answer  can  be  read,  then  it  is  manifest,  that  the  diffi- 
culties in  the  way  of  the  plaintiff  are  greatly  increased. 

The  question,  therefore,  is,  may  it  not  be  read  by  the  defend- 
ant Baker,  as  evidence  against  the  complainant  ? 

It  is  the  established  rule  in  this  state,  that  the  answer  of  one 
defendant  in  chancery,  is  not  evidence  against  the  other  de- 
fendants— the  Court  of  Appeals  having  so  expressly  decided, 
in  opposition  to  the  cases  of  Field  vs.  Holland,  6  Cranch,  8, 
and  Osborn  vs.  The  U.  S.  Bank,  9  Wheat.,  738,  in  which 
under  the  circumstances  of  those  cases,  a  different  rule  was 
settled.  Jones  vs.  Hardesty,  10  Gill  #  Johns.,  464.  But  that 
is  not  the  question  here.  It  is  not  an  attempt  to  read  the  an- 
swer of  a  defendant  against  his  co-defendant,  but  the  proposi- 
tion is,  may  not  one  defendant  read  the  answer  of  a  co-defend- 
7* 


78  HIGH  COU-RT  OF  CHANCERY. 

ant  against  the  plaintiff,  who,  by  his  bill,  called  upon  that  de- 
fendant to  respond  upon  oath  to  such  questions  as  he  thought 
fit  to  propound  to  him.  It  seems  to  be  conceded,  that  there  is 
no  decision  of  our  Court  of  Appeals  which  denies  to  a  defend- 
ant this  privilege,  of  reading  the  answer  of  his  co-defendant 
against  the  plaintiff,  the  case  of  Gardiner  fy  Bowling  vs.  Har- 
dey  fy  Simms,  12  G.  $  J.,  380,  expressly  avoiding  a  decision 
of  the  question  ;  and  it  is  thought,  that  the  reasoning  of  the 
court  in  Jones  vs.  Hardesty,  against  the  admissibility  of  the 
answer  of  one  defendant  as  evidence  against  another,  so  far 
from  leading  to  the  conclusion,  that  it  may  not  be  read  against 
the  plaintiff,  tends  rather  to  establish  the  reverse.  In  the  case 
of  Crawford  fy  Sellman  vs.  Taylor,  6  G.  fy  J.,  323,  the  answer 
of  the  insolvent,  who  was  a  defendant,  was  read,  and  consti- 
tutes a  part  of  the  proof  relied  upon  by  the  court,  as  .showing 
that  the  transfer  in  that  case  was  not  made  in  contemplation  of 
taking  the  benefit  of  the  insolvent  laws. 

The  case  of  Mill  vs.  Gore,  20  Pick.  Rep.,  28,  is  express, 
that  though  the  answer  of  one  defendant  is  not  evidence  against 
the  other,  it  is  evidence  against  the  plaintiff.  And  in  the  case 
of  Field  et  al.  vs.  Holland  et  al.,  6  Oranch  8,  chief  justice 
Marshall,  in  speaking  for  the  court,  decided,  that  the  answer  of 
a  defendant  when  responsive  to  the  bill,  is  evidence  against  the 
plaintiff  in  favor  of  the  other  defendants;  and  though  the 
Court  of  Appeals  of  this  state  expressed  their  dissent  from  this 
decision,  in  so  far  as  it  affirmed  that  the  answer  of  one  defend- 
ant might  be  read  against  others  claiming  through  him,  no  dis- 
sent was  expressed  from  the  proposition,  that  the  answer  would 
be  evidence  for  a  co-defendant  against  the  plaintiff.  The  case 
of  Morris  vs.  Nixon,  1  Howard,  119,  126,  does  not  seem  to 
me  to  decide  the  question  one  way  or  the  other.  In  the  case 
of  Dunham  vs.  Gates  et  al.,  \  Hoffman,  185,  the  assistant 
vice  chancellor  does  say,  that  the  answer  of  one  of  the  defend- 
ants could  not  be  used  on  behalf  of  the  others  ;  but  as  the  bill 
was  dismissed,  notwithstanding  this  remark,  there  was  no  ne- 
cessity for  a  careful  consideration  of  the  question,  and  from  the 
manner  in  which  the  observation  was  made,  and  the  absence 


GLENN  VS.  BAKER.  79 

of  all  authority  in  support  of  it,  I  am  persuaded  it  was  not  very 
fully  examined. 

The  argument  of  the  complainant's  council,  in  opposition  to 
the  admissibility  of  this  answer  contends,  that  the  defendant 
should  not  have  the  benefit  of  it  as  evidence,  because  he  might 
have  examined  Childs  as  a  witness — a  privilege  which  he  in- 
sists the  plaintiff  had  not,  upon  the  ground,  that  his  interest  in 
the  surplus  of  the  estate,  if  any,  in  the  hands  of  the  trustee 
Glenn,  disqualified  him. 

Now,  in  the  case  of  Hickley  vs.  The  Farmers  fy  Merchants' 
Bank,  5  G.  Of  J.,  377,  the  complainant,  the  trustee  of  an  in- 
solvent debtor  did  examine  the  insolvent  upon  this  very  ques- 
tion, and  the  decision  of  the  Court  of  Appeals  turned  entirely 
upon  his  evidence.  But,  independently  of  authority,  is  there, 
upon  principle,  any  weight  in  the  objection  to  the  insolvent  as 
a  witness  for  his  trustee,  upon  a  bill  filed  by  him,  to  set  aside 
such  a  deed  as  the  present?  The  objection  is,  that  if  the 
plaintiff  succeeds,  he,  the  witness,  will  be  entitled  to  the  sur- 
plus of  the  estate,  after  his  debts  are  paid.  But  is  not  this  the 
precise  condition  of  things  under  the  impeached  deed  to  the 
defendant,  Baker  ?  Does  not  that  deed  say,  that  after  the  pay- 
ment of  debts,  the  surplus,  if  any,  shall  be  paid  over  to  the 
grantor,  his  executors,  administrators  or  assigns,  and  is  there 
not,  therefore,  an  exact  equipoise,  rendering  it  perfectly  indif- 
ferent to  the  insolvent,  in  point  of  interest,  whether  the  decision 
passes  one  way  or  the  other. 

This  is  not  like  the  case  of  an  action  brought  by  the  trustee 
of  an  insolvent  debtor,  against  one  of  his  debtors,  in  which  the 
insolvent  would  not  be  a  competent  witness  for  the  plaintiff 
without  leasing  his  interest  in  the  surplus,  because  his  proof 
would  go  to  swell  a  fund,  in  which  he  would,  in  a  certain  event, 
have  a  right  to  participate. 

But  the  question  here  is,  simply,  which  of  two  trustees  shall 
administer  the  fund,  the  rights  of  the  insolvent  being  identically 
the  same,  let  the  result  be  what  it  may.  Under  such  circum- 
stances, I  think,  there  is  such  an  equilibrium  of  interest,  that  the 
insolvent  would  be  a  competent  witness  for  either  party,  and  so 


80  HIGH  COURT  OF  CHANCERY. 

thinking,  I  am  of  opinion,  that  the  complainant  having  thought 
fit  to  make  him  a  defendant  and  examine  him  in  that  form, 
must  be  content  to  take  his  answer  as  evidence  against  him,  so 
far  as  it  is  responsive  to  the  allegations  of  the  bill. 

On  the  ground,  therefore,  of  the  insufficiency  of  the  proof,  to 
establish  a  fraudulent  intent  on  the  part  of  the  defendant,  Childs, 
in  the  execution  of  this  deed,  the  Chancellor  passed  a  decree, 
dismissing  the  bill,  but  without  cost. 

[No  appeal  was  taken  from  this  decree.] 


THOMAS  T.  WHEELER'S  ) 

ESTATE  $     SEPTEMBER  TERM,  1847. 

[CHANCERY  PRACTICE — CONTRIBUTION  AMONG  JOINT  OBLIGORS — ASSIGNMENT   OF 

JUDGMENT.] 

WHERE  a  case  is  set  down  for  hearing  on  bill  and  answer,  all  the  averments  of 
the  latter,  whether  responsive  or  not  to  the  allegations  of  the  bill,  are  taken 
to  be  true. 

Three  joint  obligors  in  a  single  bill,  though  jointly  and  severally  liable  to  the 
creditor  for  the  whole  debt,  are,  as  among  themselves,  each  bound  to  contrib- 
ute one-third  ;  because  each  must  be  supposed  to  have  received  that  propor- 
tion of  the  consideration,  upon  which  the  obligation  was  given. 

One  of  such  obligors  who  has  received  from  another  a  sum  of  money  or  other 
property,  equal  in  value  to  the  proportion  of  that  other  in  the  common  bur- 
den, and  released  him  from  all  liability  on  account  thereof,  must  be  supposed 
to  have  received  a  consideration  equal  to  two-thirds  of  the  debt,  and  must 
be  charged  with  that  proportion,  in  adjusting  the  equities  between  himself, 
and  the  remaining  obligor. 

The  third  obligor,  who  has  been  compelled  by  the  creditor  to  pay  a  sum  ex- 
ceeding his  one-third,  will  be  allowed  at  once  in  equity,  and  without  circuits, 
to  go  against  the  party  thus  supposed  to  have  received  two-thirds  of  the  con- 
sideration of  the  debt  for  such  excess. 

The  obligor  who  has  paid  the  judgment  of  the  creditor,  and  taken  an  assign- 
ment thereof  to  himself,  may  use  such  judgment  for  his  indemnity,  so  far 
as  it  clearly  and  certainly  appears,  that  his  co-debtor  ought  to  contribute. 

[Thomas  T.  Wheeler,  on  the  19th  March,  1844,  executed  to 
Richard  J.  Bowie,  a  conveyance  of  all  his  property,  real,  per- 


THOMAS  T.  WHEELER'S  ESTATE.  81 

sonal  and  mixed,  in  trust  to  sell  for  the  benefit  of  his  creditors. 
On  the  1st  February,  1847,  the  trustee,  who  had  partly  execut- 
ed the  trust,  filed  his  bill  in  this  court,  making  John  H.  Hillea- 
ry,  and  others  of  the  creditors,  parties,  for  a  sale  of  the  property, 
and  for  the  direction  of  the  court  as  to  the  management  of  the 
trust.  John  H.  Hilleary  in  his  answer,  set  out  his  claims 
against  Wheeler,  amongst  which  was  that  hereafter  referred  to 
as  No.  2.  The  cause  was  set  down  for  hearing  upon  bill  and 
answer,  and  a  decree  passed  by  consent,  in  conformity  with  the 
prayer  of  the  bill,  and  directing  an  account  by  the  trustee  of  the 
sales  made  by  him  previous  to  the  filing  of  the  bill,  "all  equities 
being  reserved  as  to  the  creditors  of  the  said  Wheeler,  entitled 
under  the  said  deed  of  trust,  for  or  on  account  of  the  proceed- 
ings of  the  trustee,  previous  thereto,  nothing  being  herein  in- 
tended to  affirm  the  propriety  thereof,"  and  with  a  similar  reser- 
vation of  the  equities  of  said  creditors  as  to  the  sales  to  be  made 
under  the  decree.  The  trustee  thereupon  proceeded  to  make 
farther  sales,  reported  those  made  before  the  decree  and  brought 
considerable  sums  into  court. 

The   case  came  up  on  exceptions  to  the  Auditor's  report  as 
to  claim  No.  2,  in  the  statement  of  claims. 

This  claim  was  founded  upon  the  joint  and  several  single 
bill  of  the  said  grantor,  Thomas  T.  Wheeler,  of  Odel  Wheeler 
and  Thomas  Hilleary,  all  of  whom  were  admitted  to  be  prin- 
cipals, for  $1800,  dated  17th  March,  1825,  and  payable  twelve 
months  after  date,  with  interest  from  date,  upon  which  judg- 
ment was  recovered  at  March  term,  1829,  of  Montgomery  Coun- 
ty Court  against  Thomas  T.  Wheeler  and  Thomas  Hilleary,  in 
the  name  of  Thomas  S.  Wilson,  the  obligee,  for  the  use  of 
Jonathan  T.  Wilson ;  which  was  revived  at  November  term, 
1843,  against  said  Wheeler  alone,  in  the  name  of  the  executors 
of  the  obligee,  for  the  use  of  the  said  Jonathan  T.  Wilson, 
$570  being  credited  thereon,  as  of  the  7th  May,  1829,  and 
against  John  H.  Hilleary,  as  administrator  of  Thomas,  and  was 
afterwards  paid  by  John  H.  Hilleary,  as  appears  by  his  answer, 
on  which  it  was  assigned  to  him.  No  proceedings  were  insti- 
tuted against  Odel  Wheeler,  the  other  co-obligor,  and  an  agree- 


82  HIGH  COURT  OF  CHANCERY 

ment  had  been  made  by  Thomas  T.  Wheeler  with  his  repre- 
sentatives, dated  3d  November,  1842,  by  which,  for  a  valuable 
consideration,  he  released  them  from  all  liability  on  account 
thereof,  and  agreed  to  indemnify  them  for  any  loss  by  reason  of 
the  same,  "provided  always  that  the  said  Thomas  T.  Wheeler 
shall  have  full  power  and  authority  to  defend  any  suit  at  law 
or  in  equity,  which  may  be  instituted  against  the  representatives 
or  heirs  of  the  said  Odel,  or  either  of  them,  on  account  of  the 
said  single  bill." 

Upon  this  agreement  the  Auditor  gave  Hilleary  the  benefit 
of  the  lien  of  the  judgment,  charging  him  with  only  one-third, 
and  the  proceeds  of  Wheeler's  property  with  two-thirds. 

By  his  statement,  there  appeared  to  be  due  on  the  judgment 
after  crediting  all  payments  up  to  the  time  of  the  payment  in 
full  by  Hilleary,  the  sum  of  $2329  52,  to  which  was  added 
so  much  as  he  had  paid  over  and  above  his  one-third,  with  in- 
terest thereon  to  the  day  of  sale,  making  the  sum  of  $2880  27, 
less  than  the  whole  amount  of  the  judgment,  principal  and  in- 
terest, without  the  credits  on  account  of  the  payments  made  by 
Wheeler  and  Thomas  Hilleary,  deceased.  It  was  intended  by 
the  complainant,  that  by  this  statement,  Hilleary  would  receive, 
even  on  the  hypothesis  that  Wheeler's  estate  was  responsible 
for  two-thirds,  the  sum  of  $428  14  more  than  he  was  entitled 
to.  The  original  debt  being  $1800,  with  interest  from  the  17th 
March,  1825,  Thomas  Hilleary  paid  $570,  on  the  7th  of  May, 
1829,  the  costs  being  then  $17  97.  On  the  28th  November, 
1837,  additional  costs  amounting  to  $5  31,  having  been  in- 
curred, John  H.  Hilleary,  the  claimant,  paid  $600,  and  on  the 
2d  April,  1836,  Wheeler  paid  $300.  Additional  costs,  amount- 
ing to  $12  08,  were  afterwards  incurred,  and  Wheeler  paid  12th 
December,  1845,  $250. 

The  complainant  excepted  to  the  Auditor's  report. 

1st.  Because  compound  interest  was  in  effect  allowed,  and 
the  estate  of  Wheeler  was  at  the  farthest  only  bound  for  two- 
thirds  of  the  original  debt  and  interest. 

2d.  Because  the  judgment  was  improperly  allowed  as  a  lien. 

3d.  Because  Wheeler  was  only  bound  for  one-third. 


THOMAS  T.  WHEELER'S  ESTATE.  83 

4th.  Because  there  was  no  evidence  in  the  cause,  of  the  time 
or  amount  of  payment  made  by  Hilleary,  on  which  he  procured 
the  assignment. 

It  was  contended  by  Hilleary's  solicitor,  that  as  his  claim 
was  set  up  in  his  answer,  and  the  decree  was  passed  on  bill  and 
answer,  no  further  proof  could  be  required  of  him;  and  on  the 
other  side  it  was  asserted,  that  the  reservation  in  the  decree 
prevented  that  effect.] 

THE  CHANCELLOR  : 

I  do  not  look  upon  it,  the  reservation,  as  at  all  affecting  the 
rule,  that  when  a  case  is  set  down  for  hearing  on  bill  and 
answer,  all  the  averments  of  the  latter,  whether  responsive  or 
not  to  the  allegations  of  the  bill,  are  to  be  taken  for  true.  All 
the  creditors  of  Wheeler  not  being  parties  to  the  bill,  it  seemed 
proper  that  there  should  be  a  reservation  of  their  equities,  not 
only  with  respect  to  the  proceedings  of  the  trustee,  before  he 
invoked  the  aid  of  this  court,  in  the  execution  of  his  trust,  but 
that  the  reservation  should  extend  to  what  might  be  done  sub- 
sequently thereto. 

This  is  my  understanding  of  the  scope  of  the  reservation, 
and  I  think  it  would  be  carrying  it  beyond  its  legitimate  extent, 
to  construe  it,  so  as  to  require  proof  of  facts  which  according  to 
the  rules  of  pleading,  and  the  practice  of  this  court,  would,  but 
for  the  reservation,  be  considered  admitted. 

It  is  apparent  upon  the  face  of  the  instrument  itself,  (the  sin- 
gle bill,)  "and  it  is  admitted  in  writing,  that  the  three  parties 
were  all  principals  in  the  single  bill,  and  therefore  it  is  to  be 
intended,  that  they  each  receive  one-third  of  the  consideration 
upon  which  it  was  executed.  And  it  likewise  appears  by  the 
agreement  between  the  representatives  of  Odel  Wheeler  and 
Thomas  T.  Wheeler,  that  the  latter,  for  a  valuable  considera- 
tion paid  him  by  the  former,  released  and  discharged  them  from 
all  obligation  to  contribute  to  the  payment  of  the  debt,  to  the 
obligee,  Wilson,  and  contracted  to  indemnify  and  save  them 
harmless  on  account  of  the  same.  It  is  true,  Thomas  T.  Wheel- 
er stipulates  in  the  said  agreement,  that  he  shall  have  power 


84  HIGH  COURT  OF  CHANCERY. 

and  authority  to  defend  any  suit  at  law  or  in  equity,  which  may 
be  instituted  against  the  heirs  or  representatives  of  Odel  Wheel- 
er on  account  of  said  single  bill,  but  this  stipulation  is  not  in- 
consistent with,  but  is  entirely  compatible  with  the  complete 
substitution  of  himself  as  the  party  liable,  in  the  place  of  his  co- 
obligor,  Odel. 

As  I  understand  this  agreement,  Thomas  T.  Wheeler  by  it 
assumed  upon  himself,  for  a  valuable  consideration,  moving  from 
the  representatives  of  Odel  to  him,  the  payment  of  Odel's  one- 
third  of  the  single  bill  in  question,  which  made  him  responsible 
for  two-thirds.  The  stipulation,  that  he  shall  have  power  to 
defend  the  proceedings  at  law  or  in  equity  which  may  be  insti- 
tuted against  the  representatives  of  Odel  Wheeler,  does  not 
appear  to  me  to  militate  against  this  view  of  the  obligation  im- 
posed upon  him  by  contract.  Having  by  his  agreement  with 
the  representatives  of  Odel,  undertaken  to  pay  his,  Odel's,  part 
of  the  single  bill,  nothing  was  more  natural  or  proper  than  that 
he  should  be  authorized  to  defend  any  action  which  might  be 
brought  against  those  representatives  on  account  thereof;  and 
being  so  authorized,  it  is  quite  likely  a  failure  on  their  part  to 
give  him  notice  of  such  action,  might  be  fatal  to  their  right  to 
recover  from  him  upon  the  contract,  in  the  event  of  their  being 
compelled  to  pay  any  thing  on  the  single  bill. 

But  as  the  case  presents  itself  to  my  mind,  the  question  here 
is  not,  whether  the  representatives  of  Odel  Wheeler  could  re- 
cover from  Thomas  T.  Wheeler,  if  they  were  made  to  pay  any 
part  of  the  joint  debt,  without  having  given  him  an  opportunity 
to  defend  the  action ;  but  whether  as  between  Thomas  T. 
Wheeler  and  Thomas  Hilleary,  the  former  by  receiving  from 
Odel  Wheeler  a  full  and  valuable  consideration  for  that  portion 
of  the  debt,  which  he,  Odel,  was  bound  to  pay,  Thomas  T. 
Wheeler  is  not,  with  respect  to  Hilleary,  substituted  for  Odel, 
and  responsible  for  his  one-third  of  the  joint  debt  due  upon  the 
single  bill.  There  can  be  no  doubt,  that  originally  each  of 
these  three  joint  obligors,  though  jointly  and  severally  liable  to 
Wilson,  the  creditor,  for  the  whole  debt,  were,  as  among  them- 
selves, each  bound  to  contribute  one-third,  because  each  must 


THOMAS  T.  WHEELER'S  ESTATE.  85 

be  supposed  to  have  received  that  portion  of  the  consideration 
upon  which  the  obligation  was  given. 

But  if  either  one  of  them  receives  from  the  other  a  consider- 
ation equal  to  the  proportion  of  that  other,  of  the  common  bur- 
den, he  must  take  that  proportion  upon  himself,  and  in  the  ad- 
justment of  the  equities  between  the  remaining  party  and  the 
obligor,  who  has  enjoyed  a  consideration  equal  to  two-thirds  of 
the  debt,  the  latter  must  be  charged  with  that  proportion. 

That  appears  to  me  precisely  the  relative  position  of  these 
parties,  Thomas  T.  Wheeler,  Odel  Wheeler  and  Thomas  Hil- 
leary,  each  received  from  Wilson  a  consideration  in  money  or 
property,  equal  to  six  hundred  dollars,  and  executed  to  him  their 
joint  and  several  single  bill  for  eighteen  hundred  dollars. 

As  between  themselves,  therefore,  each  was  liable  to  pay  six 
hundred  dollars.  But  one  of  them,  Thomas  T.  Wheeler,  re- 
ceived from  another,  Odel  Wheeler,  in  money  or  property,  or 
in  something  else  of  value,  a  sum  equal  to  the  six  hundred  dol- 
lars. Surely,  therefore,  •  he,  Thomas  T.,  should  pay  twelve 
hundred  dollars,  and  Hilleary,  the  third  co-obligor,  who  has 
been  compelled  by  the  creditor  to  pay  a  sum  exceeding  his  one- 
third  of  the  debt,  should  be  allowed  at  once  in  equity,  and  with- 
out circuity,  to  go  against  him,  Thomas  T.,  for  such  excess. 

This  view  of  the  subject  relieves  the  case,  as  it  seems  to  me, 
of  the  question  raised  upon  the  argument,  as  to  the  obligation 
to  give  Thomas  T.  Wheeler  notice,  and  an  opportunity  to  de- 
fend a  suit  brought  against  Odel  Wheeler.  He  has  agreed  to 
assume  the  payment  of  Odel's  part  of  the  debt,  and  may  as 
well  here,  as  anywhere  else,  show,  if  he  can,  that  Odel  is  liable 
for  less  than  a  third,  or  not  liable  for  any  portion. 

No  attempt  has  been  made  to  do  this,  and  upon  the  face  of 
the  instrument  and  by  the  terms  of  the  agreement  of  the  parties  ; 
the  obligors  in  the  single  bill  were  all  principals. 

I  am,  therefore,  of  opinion,  that  Thomas  T.  Wheeler  is  lia- 
ble to  contribute  two-thirds ;  and  I  am  further  of  opinion,  that 
the  statement  of  the  claim  by  the  Auditor  is  correct. 

The  creditor  unquestionably  was  entitled  to  receive  the  whole 
amount  of  his  debt,  with  interest,  and  the  payments  made  him 
8 


86  HIGH  COURT  OF  CHANCERY. 

from  time  to  time,  were  properly  applied  in  the  first  instance 
to  the  extinguishment  of  the  interest  due  upon  the  whole  capital, 
the  excess  of  such  payments  only  being  applicable  to  the  pay- 
ment of  the  capital  itself.  But  the  mode  of  stating  the  claim, 
contended  for  by  the  counsel  of  Thomas  T.  Wheeler,  would 
defeat  this  incontestible  right  of  the  creditor ;  for  by  splitting 
it  up,  and  applying  the  payments  to  the  satisfaction,  not  of  the 
sum  due  for  interest  on  the  whole  debt,  but  on  that  portion  of 
it  assumed  to  be  due  from  the  party  making  the  payment,  it  is 
obvious,  the  creditor  would  not  receive  as  much  for  principal 
and  interest  as  he  was  clearly  entitled  to.  It  is  not  asserted, 
that  the  creditor  has  received  more  than  he  had  a  right  to  de- 
mand, and  I  therefore  think  it  must  follow,  that  Hilleary  has  a 
right  to  recover  from  his  co-debtor,  Thomas  T.  Wheeler,  the 
excess  which  he  Hilleary,  has  paid,  beyond  that  proportion  of 
the  debt  for  which  he  was  liable. 

The  remaining  question  relates  to  the  extent  to  which  Hil- 
leary has  a  right  to  use  the  judgment,  for  his  protection  and 
indemnity.  That  he  has  a  right  to  use  it  to  some  extent,  is 
settled  by  authority.  Sells  vs.  Jldmrs.  ofHubbell,2Johns.  Chan. 
Hep.,  397  ;  Scribner  vs.  Hickok,  4  ib.,  530. 

The  only  sums  credited  upon  the  judgment  at  the  time  of  its 
assignment  to  Hilleary,  is  the  $570,  paid  by  his  intestate  on  the 
7th  May,  1829.  The  subsequent  payments  are  not  credited, 
and  I  can  see  no  reason  why  the  judgment  may  not  be  used  for 
the  protection  of  Hilleary,  so  far,  in  the  language  of  Chancellor 
Kent,  as  it  clearly  and  certainly  appears  that  the  other  party 
ought  to  contribute. 

What  difference  can  it  make,  so  far  as  this  question  is  con- 
cerned, whether  the  party  paying  more  than  his  proportion  of 
the  debt,  pays  it  from  time  to  time  in  partial  amounts  or  pays 
all  at  once  ?  If,  to  be  sure,  these  partial  payments  had  been 
credited  upon  the  judgment,  it  might, pro  tanto,  be  regarded  as 
satisfied,  and  when  the  final  payment  came  to  be  made,  the 
party  making  it  must  take  and  use  the  judgment,  only  for  what 
remained  due  upon  it.  But  when  the  judgment  stands  open,  I 
cannot  see  why  a  co-debtor  paying  more  than  his  due  propor- 
tion may  not  avail  himself  of  the  judgment,  for  his  indemnity. 


BROWN  VS.  STEWART.  87 

He  is  not  to  be  deemed,  as  remarked  by  Chancellor  Kent,  in 
Scribner  vs.  Hickok,  a  purchaser  for  himself  of  the  judgment, 
and  to  use  it  as  if  it  stood  in  the  character  of  a  stranger  to  the 
parties,  but  having  satisfied  it,  as  one  of  the  defendants,  he  is 
entitled  only  to  indemnity  or  contribution  as  a  co-defendant 
from  the  other  defendants. 

My  opinion,  therefore,  is,  that  if  after  deducting  the  sum 
which  was  credited  upon  the  judgment,  there  remains  as  much 
due  as  is  equal  to  the  amount  which  Hilleary  has  a  right,  upon 
the  principles  which  have  been  stated,  to  claim  as  contribution 
from  Thomas  T.  Wheeler,  that  in  that  case  Hilleary  has  a  right 
to  the  use  of  the  judgment  for  his  indemnity,  to  the  full  amount 
of  such  claim. 

[No  appeal  wastaken  from  this  decree.J 


HENRY  H.  BROWN        ^ 

vs.  C     SEPTEMBER  TERM,  1847. 

ROBERT  STEWART  ET  AL.3 

[INJUNCTION — MORTGAGE.] 

IF  a  mortgagor,  in  possession,  is  committing  waste,  equity  will  restrain  him  by  in- 
junction. 

In  Maryland,  unless  there  is  some  agreement  of  the  parties  to  the  contrary,  the 
mortgagee  is  entitled  to  the  possession  of  the  property  immediately  upon  the 
execution  of  the  mortgage,  without  regard  to  whether  there  has  been  a  for- 
feiture or  not. 

But  because  the  mortgagee  may  take  possession  of  the  property  or  recover  it  by 
an  action  of  replevin,  he  is  not,  on  this  account,  precluded  from  the  right  of 
having  it  protected  in  a  court  of  equity. 

The  case  of  a  mortgage  forms  an  exception  to  the  general  rule,  that  a  party 
shall  not  be  allowed  to  sue  at  law  and  in  equity,  for  the  same  debt,  and  a 
mortgagee  may  pursue  all  his  remedies  at  once,  yet  he  is  under  no  obligation 
to  do  so. 

Where  a  mortgagee  files  a  bill  for  the  sale  of  the  mortgaged  property  for  the 
satisfaction  of  his  debt  then  due,  and  alleges  that  it  being  in  the  possession  of 
the  mortgagor,  has  been,  or  is  about  to  be,  wasted  ;  or,  where  it  consists  of 
personalty,  is  about  to  be  removed  beyond  the  reach  of  the  creditor,  a  court 
of  equity  has  and  will  exercise  the  power  of  preventing  the  threatened  mis- 
chief, by  injunction. 


88  HIGH  COURT  OF  CHANCERY. 

When  a  motion  to  dissolve  an  injunction  is  heard  on  bill  and  answer,  so  much 
of  the  bill  as  is  not  denied  by  the  answer  is  taken  for  true,  and  if  any  one  of 
its  material  allegations  remains  unanswered,  the  injunction  will  be  contin- 
ued till  the  final  hearing. 

When  mortgaged  property  has  been  turned  into  money,  the  rights  of  the  mort- 
gagee remain  unaltered  by  the  conversion,  and  he  has  a  right  to  have  the 
money  applied  to  the  payment  of  his  claim. 


[The  bill  filed  in  this  cause,  stated,  that  on  the  3d  day  of 
January,  1843,  Robert  Stewart  of  Anne  Arundel  county,  exe- 
cuted a  mortgage  of  certain  real  and  personal  property,  the  lat- 
ter consisting  partly  of  slaves,  to  Henry  H.  Brown,  the  com- 
plainant, and  Thomas  M.  Camden,  to  secure  them  in  the  sum 
of  $1200,  with  interest  from  the  6th  May,  1841,  and  also 
against  any  future  liabilities,  which  they  might  incur  in  his 
behalf;  that  this  debt  having  been  reduced,  to  the  sum  of 
$424  88,  on  the  12th  November,  1842,  Stewart,  on  the  21st 
December,  1843,  gave  the  complainant  his  single  bill  therefor, 
which,  together  with  the  statement  ascertaining  said  balance, 
was  filed  with  the  bill  of  complaint ;  that  since  the  execution 
of  the  mortgage,  one  of  the  negroes  conveyed  by  it,  had  died, 
and  four  had  been  sold  out  of  the  state,  for  about  one  thousand 
dollars,  the  whole  or  a  part  of  which  sum  had  been  deposited 
in  the  Farmers  Bank  of  Maryland  by  the  defendant,  to  his  own 
credit ;  that  he  was  about  to  sell  other  of  the  negroes  and  per- 
sonalty ;  and  that  his  title  to  the  real  property  was  a  courtesy 
interest,  nearly  valueless,  on  account  of  his  advanced  age. 
The  complainant  alleged  his  ignorance  of  the  extent  to  which 
Camden  and  himself  had  been  indemnified  as  securities,  as 
aforesaid,  and  concluded  with  a  prayer  for  a  discovery  on  the 
part  of  Camden  and  Stewart  relative  thereto.;  for  an  injunction 
against  the  latter,  and  the  Bank ;  to  restrain  the  one  from  sell- 
ing more  of  the  negroes  or  other  personalty,  and  the  other  from 
paying  over  the  proceeds  of  the  former  sale  to  said  Stewart's 
order  ;  and  for  a  sale. 

Stewart  in  his  answer,  admitted  the  execution  of  the  mort- 
gage, the  correctness  of  the  statement  of  his  debt  to  the  com- 
plainant, (with  the  exception  of  the  creditsx  to  be  made  on  the 


BROWN  VS.  STEWART.  89 

12th  November,  1842,)  the  death  of  one  of  the  negroes  ;  the 
sale  of  four,  and  the  deposit  to  his  own  credit  in  the  Farmers 
Bank  of  Maryland  ;  but  denied  an  intention  to  sell  more  of  the 
negroes ;  the  insufficiency  of  the  residue  of  the  property  ;  and 
his  indebtedness  to  the  complainanf. 

In  the  statement  filed  by  the  complainant,  the  defendant  was 
credited  as  of  the  12th  November,  1842,  with  a  commission  of 
$200,  for  services  rendered,  which  left  a  balance  of  $424  88, 
for  which  he  gave  his  single  bill  as  stated  above  and  admitted 
in  the  answer,  but  the  answer  further  stated,  that  the  transac- 
tion was  a  fraud  upon  the  defendant,  who,  relying  upon  the 
correctness  of  the  balance  stated  by  the  complainant,  had  affix- 
ed his  signature  to  the  instrument  without  having  read  it,  and 
denied  the  sufficiency  of  the  last  credit,  stating  in  relation 
thereto,  that  on  the  21st  March,  1840,  letters  of  administration 
were  taken  out  by  said  defendant,  together  with  the  complain- 
ant, upon  the  estate  of  Thos.  R.  Cross,  deceased,  which  is  not 
yet  fully  administered  ;  that  said  Cross,  in  his  lifetime,  being 
largely  indebted  to  him,  and  he  being  in  like  manner,  indebted 
to  P.  McKenna  &  Co.  the  two  former  united  in  a  single  bill  to 
the  latter,  dated  30th  January,  1838,  for  $227  48,  with  the 
understanding,  that  it  was  to  be  paid  by  said  Cross,  who  never- 
theless died  without  having  done  so,  and  at  April  term,  1840, 
judgments  were  recovered  on  this  bill,  one  against  said  Stew- 
art, as  surviving  obligor,  and  another  against  him  and  the  com- 
plainant, as  administrators  of  said  Cross.  That  the  sum  due 
on  these  judgments  was  paid  by  the  defendant,  with  the  under- 
standing between  him  and  the  complainant,  that  he  should  be 
allowed  for  it,  against  the  estate  of  the  deceased  ;  that  although 
an  order  to  that  effect  had  been  passed  by  the  Orphans'  Court, 
the  allowance  had  not  been  made  ;  and,  therefore,  that  this  was 
now  a  good  set-off  against  the  complainant's  claim.  The  answer 
further  stated,  that  instead  of  an  allowance  of  $200,  for  com- 
missions, on  the  12th  November,  1842,  the  proper  allowance 
was  $392  98,  being  half  the  commission  allowed  by  the  Or- 
phans' Court,  to  him  and  the  complainant,  as  administrators  as 
aforesaid. 
8* 


90  HIGH  COURT  OF  CHANCERY. 

The  propriety  of  the  allowance  of  these  two  credits  constitu- 
ted the  main  ground  of  the  defence,  made  by  the  defendant,  as 
their  allowance  would  render  the  complainant  indebted  to  him 
to  a  small  amount. 

The  complainant  excepted  to  this  answer,  as  not  being  re- 
sponsive to  the  allegations  in  the  bill,  as  to  the  sum  for  which 
the  slaves  were  sold,  as  to  the  alleged  disposition  of  other  por- 
tions of  the  mortgaged  personalty,  the  deposit  of  the  proceeds 
of  sale  in  the  said  bank  ;  the  continuance  of  a  residue  of  the  same 
on  deposit  there  ;  the  intention  of  selling  other  portions  of  the 
mortgaged  property  besides  the  negroes  ;  and  the  courtesy  inter- 
est. These  exceptions  having  been  argued,  together  with  the 
motion  to  dissolve  the  injunctions,  the  Chancellor  delivered  the 
following  opinion  :] 

T    H  CHANCELLOR: 

With  regard  to  the  last  of  these  credits,  (the  set-off  claimed,) 
it  is  sufficient  to  say,  that  if  the  voucher  upon  which  it  is 
claimed,  can  hereafter  be  used  as  the  evidence  of  a  title  to  re- 
imbursement from  any  one,  it  can  certainly  not  be  set  off 
against  the  claim  of  this  complainant  founded  upon  his  mort- 
gage. If  the  defendant  t  ewart,  has,  in  respect  of  this  trans- 
action, a  claim  against  any  party,  it  is  against  the  estate  of 
Thomas  R.  Cross,  upon  which  letters  of  administration  were 
granted  to  him  and  the  complainant.  Surely,  the  complainant, 
Brown,  cannot,  out  of  his  own  estate,  be  made  to  pay  the 
debt  of  a  man  upon  whose  estate  he  has  administered,  to  his 
co-administrator,  in  a  proceeding  like  the  present.  If  he,  the 
complainant,  be  liable  exclusively  for  the  payment  of  this  debt, 
it  is  a  liability  in  his  representative  character,  and  cannot  be 
set  off  against  a  debt  due  him  in  his  own  right.  With  respect 
to  the  remaining  credit,  claimed  by  this  defendant,  indepen- 
dently of  the  other  objections  insisted  upon  in  the  argument, 
I  deem  the  settlement  and  the  sealed  acknowledgment  of  the 
21st  December,  1843,  as  conclusive  against  it,  in  the  present 
state  of  this  case.  If  the  defendant,  Stewart,  was  entitled  to 
this  credit,  he  was  so  entitled  prior  to,  and  at  the  date  of  the 


BROWN  VS.  STEWART.  91 

settlement  referred  to,  and  unless  that  settlement,  manifested 
and  sanctioned  by  his  hand  and  seal,  can  be  shown  by  proof  to 
have  been  founded  upon  mistake,  or  procured  by  fraud,  it  must 
conclude  the  antecedent  transactions  between  the  parties,  and 
more  especially  those  transactions  upon  which  the  settlement 
professes  to  have  acted. 

I  think  it,  therefore,  very  clear,  that  so  far  as  this  defendant 
has  attempted  to  remove  the  ground  upon  which  this  injunction 
rests,  by  attempting  to  show  an  extinguishment  of  the  com- 
plainant's claim,  he  has  not  succeeded,  but  that  the  latter  must, 
at  least  in  this  stage  of  the  cause,  be  considered  as  having  a  ti- 
tle to  sue  upon  the  mortgage. 

The  object  of  this  bill,  as  we  have  seen,  is  not  only  to  pro- 
cure a  sale  of  the  property  mortgaged,  for  the  payment  of  the 
claim  of  the  complainant,  but  upon  the  averment  of  the  sale  of 
a  portion  thereof,  and  the  apprehended  disposition  of  the  resi- 
due by  the  defendant,  and  the  consequent  diminution  or  de- 
struction of  the  security  for  the  debt,  the  court  was  called  upon 
to  interpose  its  conservative  power  for  the  protection  of  the 
rights  of  the  complainant. 

That  a  mortgagee,  prior  to  the  period  when  he  may  proceed 
to  foreclose  and  sell  the  property  mortgaged,  may,  by  a  bill  in 
equity,  with  such  averments  as  are  contained  in  this  bill,  obtain 
an  injunction  as  a  preventive  remedy  against  the  apprehended 
danger,  has  been  decided  by  the  Court  of  Appeals.  Clagett  et 
al.  vs.  Salmon,  5  G.  Sf  J.,  314.  But  that  court  has  not  decided, 
nor  do  I  find  it,  so  far  as  my  examination  has  extended,  ex- 
pressly decided  anywhere,  that  the  court  will  put  forth  its  au- 
thority in  this  way  after  the  debt  has  become  due,  and  conse- 
quently at  a  period  when  the  mortgagee  has  a  right  to  ask  for  a 
foreclosure  and  sale  of  the  property.  I  do  not,  however,  find 
the  contrary  to  be  decided,  and  it  seems  to  me  the  administration 
of  justice  would  be  defective  if  the  power  invoked  by  this  bill 
is  denied  the  court. 

If  a  mortgagor  in  possession  is  committing  waste,  equity  will 
restrain  him  by  injunction  ;  though  in  one  case,  Lord  Thurlow 
appeared  to  question  the  doctrine,  upon  the  notion  that  the 


92  HIGH  COURT  OP  CHANCERY. 

mortgagee  was  in  fault,  in  permitting  the  mortgagor  to  continue 
in  possession.  Eden  on  Injunctions,  166  ;  Robinson  vs.  Litton, 
38  Atk.  210  ;  Fanant  vs.  Lovel,  ib.,  723. 

It  is  true,  that  it  is  established  in  Maryland,  that  unless  there 
is  some  agreement  between  the  parties  to  the  contrary,  the  mort- 
gagee is  entitled  to  the  possession  of  the  property,  immediately 
upon  the  execution  of  the  mortgage,  and  this  without  regard  to 
whether  there  is  a  forfeiture  or  not.  Jamison  vs.  Bruce,  6  G. 
fy  J.,  72.  And  hence  it  follows,  that  though  either  before  or 
after  forfeiture  at  law,  the  mortgagee  may  take  possession  of  the 
property,  or  recover  it  by  an  action  of  replevin,  he  is  not  on  this 
account  precluded  from  the  right  of  having  it  protected  in  this 
court,  until  it  can  be  made  available  by  a  decree  for  the  pay- 
ment of  the  debt  charged  upon  it. 

If  it  be  urged,  that  there  is  no  necessity  for  the  interposition 
of  the  court  in  this  case  by  injunction,  because  the  debt  being 
due,  the  mortgagor  may  possess  himself  of  the  property  by  re- 
plevin, the  answer  is,  that  the  same  right  would  exist,  though 
the  debt  was  not  due,  and  in  the  latter  case  the  Court  of  Appeals 
have  expressly  affirmed  the  power  of  this  court  to  preserve  the 
property  by  injunction. 

Though  the  case  of  a  mortgage  forms  an  exception  to  the  gen- 
eral rule,  that  a  party  shall  not  be  allowed  to  sue  in  law  and  in 
equity  for  the  same  debt,  and  a  mortgagee  may,  without  re- 
straint, sue  upon  all  his  remedies  at  once,  (having  nevertheless 
but  one  satisfaction,)  yet  he  is  under  no  obligation  to  do  so, 
and  it  would  certainly  be  falling  short  of  the  demands  of  justice, 
and  the  exigency  of  the  case,  if  this  court,  when  the  remedy  is 
sought  exclusively  here,  has  not  the  power  in  a  proper  case,  to 
protect  the  subject  of  the  controversy  from  destruction,  while 
the  suit  is  depending.  3  Powel  on  Mortgages,  966  and  note  1  ; 
Jones  vs.  Conde,  6  Johns.  Ck.  Rep.,  77. 

I  am,  therefore,  of  opinion,  that  when  a  mortgagee  files  a  bill 
in  equity  for  a  sale  of  the  mortgaged  property,  for  the  satisfac- 
tion of  his  debt,  being  then  due,  and  alleges,  that  it  being  in 
possession  of  the  mortgage  i ,  has  been,  or  is  about  to  be  wasted  : 
or  where  it  consists  of  personalty,  is  about  to  be  removed  be- 


BROWN  VS.  STEWART.  93 

yond  the  reach  of  the  creditor,  thus  impairing  his  security ; 
that  in  such  a  case  this  court  has  the  power,  by  injunction,  to 
prevent  the  threatened  mischief,  and  preserve  the  pledge  until  it 
can  be  applied  to  the  purpose,  for  which,  by  the  contract  of  the 
parties,  it  was  destined  ;  that  such  a  power  is  indispensable  to 
that  complete  and  full  justice  which  a  court  of  equity  is  author- 
ised to  administer,  and  should  have  the  means  of  administering, 
in  all  cases  within  its  jurisdiction,  without  the  aid  or  co-opera- 
tion of  other  tribunals. 

But,  although  an  injunction  may  be  granted  in  such  a  case 
as  is  made  by  this  bill,  yet  it  is  liable  to  be  dissolved  as  in  other 
cases,  upon  the  coming  in  of  the  answer,  if  the  equity  upon 
which  it  is  founded,  is  sworn  away  or  denied,  and  it  remains  to 
be  seen,  whether  the  equity  of  this  bill  is  so  sworn  away. 

It  has  already  been  remarked,  that  the  attempt  to  show,  that 
the  complainant's  claim  has  been  extinguished,  is  unsuccessful, 
as  the  case  now  stands  upon  bill  and  answer,  and,  therefore,  he 
must  be  regarded  for  the  purpose  of  the  present  motion,  as  a 
mortgage  creditor,  and  entitled  to  all  the  remedies  which  right- 
fully belong  to  that  position.  This  relation  by  itself,  however, 
would  not  have  entitled  him  to  an  injunction  in  the  first  instance, 
nor  would  it  now  entitle  him  to  a  continuance  of  it.  He  must 
show,  not  only  that  he  has  a  claim  as  mortgagee,  but  that  with- 
out the  prompt  intervention  of  this  court  by  injunction,  he 
would,  by  the  wrongful  and  fraudulent  act  of  his  debtor,  be  de- 
prived of  his  security.  This  was  done  by  the  bill,  and  after  a 
careful  examination  of  the  answer,  I  am  of  opinion,  that  some 
of  the  material  allegations  of  the  former  are  neither  admitted 
nor  denied,  and  consequently  the  injunction  must  be  continued. 

It  is  settled  that  when  a  motion  to  dissolve  an  injuction  is 
heard  on  bill  and  answer,  so  much  of  the  bill  as  is  not  denied 
by  the  answer,  is  taken  for  true,  and  that  if  any  one  of  its  ma- 
terial allegations  remains  unanswered,  the  injunction  will  be 
continued  till  the  final  hearing,  because  in  such  a  case,  the 
equity  upon  which  the  injunction  issued  is  not  sworn  away. 

I  am  of  opinion,  that  the  complainant's  second,  third, 
fourth,  fifth  and  sixth  exceptions  to  the  answer  of  Stewart  are 


94  HIGH  COURT  OF  CHANCERY. 

well  taken.  The  second,  fifth  and  sixth  relate  to  acts  or  inten- 
tions imputed  to  defendant  impairing,  or  showing  the  inadequa- 
cy of  the  security,  and  they  are  not  answered  explicitly  and 
frankly  as  they  should  be. 

The  allegations  in  the  bill,  upon  which  the  third,  and  fourth 
exceptions  are  founded,  relate  to  the  application  and  present  po- 
sition of  the  money  for  which  the  mortgaged  slaves  were  sold. 
It  was  certainly  material  to  trace  this  money,  and  discover  where 
it  is  deposited,  as  otherwise  it  could  not  be  applied  at  the  prop- 
er time,  to  the  payment  of  the  claim  of  the  complainant,  should 
such  payment  hereafter  be  decreed.  The  right  of  the  com- 
plainant to  have  such  application  made,  depends  upon  whether 
the  money  alleged  to  be  in  the  bank,  arose  from  the  sales  of 
the  slaves,  or  other  property  included  in  the  mortgage.  The 
bill  so  alleges,  but  the  answer  instead  of  admitting  or  denying 
this  allegation,  by  which  the  money  in  bank  could  be  identi- 
fied with  that  which  the  defendant  received  from  the  sales  of 
the  slaves,  which  he  confesses  he  sold,  states  that  he  applied 
the  money  to  his,  the  defendant's  own  use.  Now  this  identity 
of  the  money  in  bank,  is  an  important  fact,  for  upon  it  de- 
pends the  right  of  the  complainant,  to  have  it  appropriated 
specifically  to  the  payment  of  his  claim,  the  principle  being, 
that  when  mortgaged  property  is  turned  into  money,  the  mort- 
gagee, has  a  right  to  have  it  applied  to  the  payment  of  his 
claim ;  his  rights  remaining  unaltered  by  the  conversion  of  the 
property  into  money,  Jistor  vs.  Miller,  2  Paige,  68. 

For  these  reasons,  I  am  of  opinion,  that  the  injunction  must 
be  continued,  and  shall  so  order. 

[No  appeal  was  taken  from  this  order.] 


CULLISON  VS.  BOSSOM.  95 


CULLISON  AND  WIPE  ^ 

»:.;.  >     SEPTEMBER  TERM,  1847. 

JOHN  BOSSOM  ET  AL.  3 

[DEMURRER — DISCOVERT — AMENDMENT.] 

UPON  a  demurrer  to  a  bill,  because  it  sought  to  compel  the  defendants  to  a  dis- 
closure of  their  titles,  HELD — 

That  the  right  of  a  plaintiff  in  equity  to  the  benefit  of  the  defendant's  oath,  is 
limited  to  a  discovery  of  such  material  facts  as  relate  to  the  plaintiff 's  case  ; 
and  does  not  extend  to  a  discovery  of  the  manner  in  which,  or  the  evidence 
by  means  of  which,  the  defendant's  case  is  to  be  established. 

Where  there  is  a  privity  shown  to  exist  between  the  title  of  the  plaintiff  and 
defendant,  that  privity  may  give  him  the  right  to  call  for  an  exposure  of  the 
defendant's  title  ;  but  unless  such  connection  is  shown,  he  has  no  such  right, 
whether  the  bill  be  for  discovery  only,  or  for  discovery  and  relief. 

The  title  of  the  plaintiffs  not  appearing  to  be  at  all  dependent  upon,  or  con- 
nected with,  that  of  the  defendant,  the  demurrer  was  ruled  good. 

Allowing  a  demurrer  to  a  whole  bill,  in  strictness,  puts  it  out  of  court,  and  no 
subsequent  proceedings  can  be  taken  in  the  cause  ;  yet,  the  court  has  some- 
times permitted  an  amendment  of  the  bill  to  be  made. 

[This  case  was  brought  before  the  court  on  a  demurrer  to 
the  bill — the  arguments  of  the  solicitors  for  the  parties,  having 
been  submitted  to  the  Chancellor  in  writing. 

The  bill  was  filed  by  the  grand-daughter  of  Daniel  McCo- 
mesky,  deceased,  and  her  husband,  against  the  defendants,  stat- 
ing that  the  latter  professed  to  claim  a  portion  of  the  lands  of 
the  deceased,  through  one  of  his  devisees,  also  deceased.  After 
tracing  the  title  of  the  female  complainant  as  one  of  the  heirs 
at  law,  as  well  to  the  deceased  testator,  as  to  his  devisee, 
through  whom  the  defendants  claim,  the  bill  prays  that  "the  de- 
fendants may  answer  the  premises  as  fully  as  if  again  thereto 
especially  interrogated,  and  may  state  particularly  by  what  title, 
or  titles,  or  writings,  they  severally  claim  to  be  entitled  to  any 
part  of  said  estate,  and  may  produce  all  and  every  such  writ- 
ings, or  titles."  The  bill  further  prayed,  that  the  lands  might 
be  sold  and  a  distribution  made  of  the  proceeds  ;  and  for  further 
relief. 

Those  of  the  defendants  who  did  not  disclaim  all  interest  in 


96  HIGH  COURT  OF  CHANCERY. 

the  cause,  demurred,  amongst  other  things,  to  this  prayer  of 
discovery  ;  on  the  ground,  that  the  complainant  had  no  right  to 
compel  the  defendants  to  a  disclosure  of  their  titles.] 

THE  CHANCELLOR: 

It  seems  to  be  the  well  established  rule  of  the  court,  that  the 
right  of  a  plaintiff  in  equity  to  the  benefit  of  the  defendant's 
oath,  is  limited  to  a  discovery  of  such  material  facts,  as  relate 
to  the  plaintiff's  case,  and  does  not  extend  to  a  discovery  of 
the  manner  in  which,  or  the  evidence  by  means  of  which,  the 
defendant's  case  is  to  be  established,  or  to  any  discovery  of 
the  defendant's  evidence.  1  Daniel's  Prac.,  645,  646. 

If,  to  be  sure,  there  is  a  privity  shown  between  the  title  of 
the  plaintiff  and  defendant,  that  priority  may  give  him  the  right 
to  call  for  an  exposure  of  the  defendant's  title ;  but  unless  such 
connection  with  his  own  title  is  shown,  he  has  no  right  to  call 
for  a  discovery,  or  production  of  the  title  of  his  adversary ;  and 
this,  whether  the  bill  be  for  discovery  only,  or  for  discovery  and 
relief.  Story's  Eg.  PL,  sec.  572;  Daniel's  Prac.,  647. 

The  rule  as  laid  down  by  Judge  Story  is,  "that  a  party  has 
no  right,  to  any  discovery,  except  of  facts  and  deeds,  and  writ- 
ings necessary  to  his  own  title,  or  under  which  he  claims  ;  for 
he  is  not  at  liberty  to  pry  into  the  title  of  the  adverse  party." 
2  Story's  Equity,  sec.  1490. 

Upon  a^  examination  of  this  bill,  I  am  of  opinion,  that  there 
is  not  that  immediate  connection  and  privity,  if  indeed  there  be 
any,  between  the  titles  of  these  plaintiffs  and  defendants,  as  war- 
rants an  application  for  the  production  or  discovery  of  the  title 
of  the  latter.  The  title  of  the  plaintiffs  is  stated  distinctly,  and 
does  not  appear  to  be  at  all  dependent  upon  or  connected  with 
that  of  the  adversary,  and,  therefore,  it  seems  to  be  an  attempt 
without  necessity,  to  pry  into  the  title  of  the  latter,  in  opposi- 
tion to  the  fixed  rule  upon  the  subject.  The  bill  does  not  al- 
lege that  the  plaintiff's  title  is  at  all  complicated  with,  or  at  all 
dependent  upon,  that  of  the  defendants  ;  or  that  the  former  will 
have  any  difficulty  in  establishing  their  right,  without  an  ex- 
posure of  the  title  of  those  from  whom  the  discovery  is  sought ; 


WASHINGTON  UNIVERSITY  VS.  GREEN.  97 

and,  therefore,  I  think  the  bill,  so  far  as  the  discovery  is  con- 
cerned, cannot  be  maintained,  and  that  the  demurrer  must  be 
ruled  good. 

In  strictness,  the  allowing  a  demurrer  to  the  whole  bill,  puts 
it  out  of  court,  and  no  subsequent  proceeding  can  be  taken  in 
the  cause  ;  yet  there  are  cases  in  which  the  court  has  afterwards 
permitted  an  amendment  of  the  bill  to  be  made.  Daniel's  Prac., 
669;  ^Alexander's  Prac.,  58. 

This  bill  will,  therefore,  be  retained,  to  give  the  plaintiffs  an 
opportunity  of  amending  it,  if  they  think  proper. 

It  is,  thereupon,  this  12th  day  of  November,  in  the  year  1847, 
adjudged  and  ordered,  that  the  demurrer  to  the  discovery  of  the 
defendant's  title,  sought  by  this  bill,  be,  and  the  same  is,  hereby, 
ruled  good,  and  that  the  defendants  recover  from  the  plaintiffs 
their  costs  to  be  taxed  by  the  Register ;  but  this  bill  is  retained 
with  liberty  to  amend,  as  the  plaintiffs  may  be  advised. 

[No  appeal  was  taken  from  this  order.] 


THE  WASHINGTON  UNIVER-  ) 

SITY  OF  BALTIMORE  ET  AL.  ( 

>     SEPTEMBER  TERM,  1847. 
vs.  I 

EDWARD  GREEN. 

[INJUNCTION.] 

AN  injunction,  unless  issued  after  the  decree,  when  it  becomes  a  judicial  pro- 
cess, can  only  be  used  for  the  purpose  of  prevention  and  protection,  and  not 
for  the  purpose  of  commanding  the  defendant  to  undo  any  thing  he  had  pre- 
viously done. 

The  bill  alleges,  that  the  buildings  on  the  grounds  in  question,  were  used  for  the 
purpose  of  giving  medical  instruction,  and  as  an  infirmary  for  the  sick,  by 
the  professors  composing  the  medical  faculty  of  the  corporation,  and  prays 
that  the  defendant  shall  be  restrained  from  so  acting  as  to  interfere  with 
their  possession  and  use  for  that  purpose  ;  and  that  he  be  commanded  to  for- 
bear from  the  repetition  of  the  acts  which  impeded  the  enjoyments  of  the 
rights  and  the  discharge  of  the  duties  on  the  part  of  the  professors.  HELD — 

That  an  injunction  of  this  descriptuwTcannot  be  regarded  as  going  beyond  the 

9 


98  HIGH  COURT   OF   CHANCERY. 

legitimate  office  of  the  process,  or  .as  possessing  the  character  of  a  judicial 

writ. 
Where  the  material  allegations  of  the  bill  are  denied  by  the  answer,  the  motion 

to  dissolve  must  prevail,  unless  the  bill  can  be  supported  by  testimony  taken 

under  the  act  of  1835,  ch.  380,  sec.  8. 
All  averments  of  the  bill,  not  denied  by  the  answer,  must,  upon  all  questions 

relating  to  the  injunction,  be  regarded  as  true. 
After  the  injunction  was  dissolved,  the  defendant  filed*  a  petition,  stating  that 

the  complainants,  in  pursuance  of  the  injunction,  had  taken  possession  of  the 

property,  to  which  the  defendant  yielded,  and  prays  that  an  order  may  be 

passed,  restoring  the  possession  to  the  defendant.     HELD — 
That  if  the  defendant  has  surrendered  a  possession  previously  held  by  him,  he 

he  has  done  that  which  the  court,  by  its  injunction,  did  not  command  him  to 

do,  and  for  which  he  has  no  right  to  ask  for  redress  at  its  hands,  and  that  the 

petition  should  be  dismissed. 

[The  bill  in  this  case  was  filed  by  the  Washington  University 
of  Baltimore,  and  the  surviving  trustees  under  a  deed  of  trust 
from  said  university,  stating  that  said  trustees  and  certain  cestui 
que  trusts  under  said  deed,  filed  a  bill  in  this  court  against  the 
university  and  Edward  Green,  claiming  a  sale  of  the  property 
conveyed  by  the  deed,  according  to  its  provisions ;  and  stating 
that  Green  claimed  the  same  as  purchaser  under  an  execution 
against  the  university,  recovered  long  after  the  deed  of  trust  was 
executed.  That  subsequent  to  the  filing  of  said  bill,  Green  in- 
stituted an  ejectment  suit  in  Baltimore  County  Court  for  the 
recovery  of  said  property,  making  Holden  B.  Hill,  steward  of 
the  buildings  of  the  university,  defendant.  That  as  Hill  was 
only  the  nominal  defendant,  the  trustees,  as  they  had  a  right  to 
do,  interposed  to  defend  the  suit,  and  employed  a  counsel  for 
that  purpose,  who  was  the  only  one  engaged  for  the  defence. 
That  at  January  term,  1847,  of  said  court,  judgment  by  con- 
fession was  entered  for  the  plaintiff,  Green,  with  an  agreement 
for  a  stay  of  execution  till  the  determination  of  the  suit  in  chan- 
cery. That  the  property  consisted  of  large  grounds  and  ex- 
tensive buildings,  in  Baltimore,  used  for  medical  instruction, 
and  as  an  infirmary,  and  was  so  used  when  said  judgment  was 
rendered,  and  long  before,  under  the  direction  of  the  faculty  of 
said  institution.  That  the  suit  in  chancery  had  not  been  ter- 
minated, although  complainants  had  tried  to  bring  it  to  a  close, 
when  suddenly,  on  the  2d  of  August,  1847,  Green  in  defiance 


WASHINGTON  UNIVERSITY  VS.  GREEN.  99 

of  his  agreement — the  foundation  of  the  judgment — violently 
entered  said  buildings  and  drove  out  the  professors  engaged  in 
instruction,  and  in  tending  the  sick ;  and  emboldened  by  the 
advice  of  counsel,  he  persisted  in  preventing  them  from  enter- 
ing, in  discharge  of  their  duties,  although  there  was  there  much 
valuable  property  belonging  to  them  and  others  connected  with 
the  institution. 

The  bill  concluded  with  a  prayer  for  an  injunction,  the  na- 
ture and  extent  of  which  is  set  forth  by  the  Chancellor  in  his 
opinion  ;  and  for  general  relief. 

An  injunction  was  immediately  granted  upon  this  bill,  and 
afterwards  the  defendant  filed  his  answer,  stating,  that  it  was 
true  that  a  bill  had  been  filed  in  chancery,  as  alleged  in  the 
present  bill,  and  that  the  answers  thereto  had  been  filed,  and 
the  proceedings  were  then  pending,  although  he  had  endeav- 
ored to  bring  the  case  to  a  final  hearing.  That  he  did  institute  an 
ejectment  suit  for  said  property  as  stated  in  the  bill,  but  that 
the  pendency  of  the  chancery  suit  was  no  objection  to  its  pros- 
ecution, or  if  it  was,  the  defence  should  have  been  taken  at  law. 
That  he  purchased  the  property  at  a  sheriff's  sale,  obtained  a 
deed  for  it,  and  was  put  into  possession  by  Hill,  whom  he  suf- 
fered to  remain  on  the  property  to  take  care  of  it  and  make 
such  profits  from  it  as  circumstances  would  allow  ;  Hill  ac- 
knowledging himself  his  tenant,  and  agreeing  to  surrender  the 
possession  when  required.  That  in  April,  1845,  he  demanded 
possession  of  Hill,  which  being  refused,  he  brought  said  eject- 
ment and  recovered  judgment  thereon  ;  and  was  on  the  22d  of 
July,  1847,  peaceably  put  in  possession,  by  Hill,  of  the  said 
grounds  and  premises.  That  as  Hill  waived  the  agreement, 
which  he  had  a  right  to  do,  his  so  taken  possession  was  not  in 
violation  of  the  terms  thereof.  That  he  denied,  and  ever  did, 
the  right  of  the  corporate  authorities  of  the  institution,  or  of  the 
trustees,  to  interfere  with  him  in  the  possession  of  the  property, 
forasmuch  as  the  former  confessed  the  judgment,  upon  which 
the  sale  to  him  was  made  ;  and  as,  by  the  terms  of  the  deed, 
the  latter  had  no  right  to  interfere  with,  or  control  the  institu- 
tion, even  admitting  the  validity  of  the  deed,  (which  he  did 


HIGH  COURT  OF  CHANCERY. 
'    '        ' 

not;)  as  dividends  had  never  been  declared  by  the  corporate 
authorities,  nor  had  any  profits  been  earned.  But  that  whilst 
maintaining  "fijw^right  to  the  premises,  he  denied  obstructing  the 
faculty  or  professors  in  tending  the  sick,  they  having  been 
daily  in  attendance  whilst  he  was  in  possession.  That  the  resi- 
dent professor  continued  to  perform  his  duties  all  the  time, 
and  the  sick  were  provided  with  necessaries  at  his  (Green's) 
expense.  That,  as  to  his  forcible  entry  on  the  2d  of  August,  he 
only  took  such  measures  as  are  necessary  to  the  preservation 
of  property  in  large  cities.  That,  in  his  answer,  filed  in  the 
other  suit  against  him,  he  had  exposed  the  invalidity  of  the 
claim  of  the  trustees,  and  the  answer  of  the  said  university, 
filed  in  the  same  case,  also,  opposed  and  denied  it ;  although 
it  might  suit  the  succeeding  faculty  to  deny  the  admissions 
of  their  predecessors,  who  were  fully  cognizant  of  the  facts 
of  the  case,  and  to  seek  by  union  with  the  trustees,  to  benefit 
themselves,  whilst  they  failed  to  keep  down  the  current  ex- 
penses of  the  institution,  or  to  apply  any  thing  to  the  repair  of 
the  property.  That  none  of  the  members  of  the  institution  had 
sworn  to  the  bill,  and  that  the  only  one  of  them  who  had  any 
interest  in  the  concern  refused  to  join  in  the  suit.  And  that 
the  title  of  the  complainants,  if  any  they  had,  was  a  legal  one, 
and  to  be  asserted  at  law,  not  in  chancery. 

On  the  coming  in  of  this  answer,  a  motion  was  made  to  dis- 
solve the  injunction,  which  was  argued  before  the  Chancellor, 
who  delivered  the  following  opinion  :] 

THE  CHANCELLOR : 

One  of  the  grounds  taken  by  the  defendant  against  the  con- 
tinuance of  this  injunction  is,  that  it  transcends  the  limits  usu- 
ally assigned  to  this  preventive  process  of  the  court.  That  the 
injunction  in  this  case,  instead  of  simply  prohibiting  an  act  to 
be  done,  injurious  to  the  rights  of  the  complainants,  and 
leaving  things  in  their  then  condition,  passes  beyond  this 
boundary,  and  commands  an  act  to  be  undone  which  had  been 
consummated  prior  to  the  filing  of  the  bill.  Such,  however,  was 
not,  nor  is  it  now,  my  understanding  of  the  extent  to  which 


WASHINGTON  UNIVERSITY  VS.  GREEN.  101 

this  injunction  has  gone.  The  bill  alleges,  that  the  buildings 
erected  upon  the  grounds  in  question  had  been  used  for  the 
purpose  of  giving  medical  instruction,  and  as  an  infirmary  for 
the  sick,  and  were  so  used  through  the  professors  composing 
the  medical  faculty  of  the  corporation,  who  must  necessarily 
have  possession,  and  free  and  uninterrupted  ingress  and  egress 
therefrom ;  and  it  prays  that  the  defendant  shall  be  restrained 
from  so  acting,  as  to  interfere  with  their  possession,  and  use 
for  that  purpose  ;  and  that  he  be  commanded  to  forbear  from 
the  repetition  of  acts  which  impeded  the  enjoyment  of  these 
rights,  and  the  discharge  of  these  duties  on  the  part  of  the 
professors.  It  seems  to  me  that  an  injunction  of  this  descrip- 
tion cannot  be  regarded  as  going  beyond  the  legitimate  office 
of  the  process,  or  as  possessing  the  character  of  a  judicial  writ, 
which  can  only  issue  after  a  decree ;  but  that,  in  the  language 
of  Judge  Story,  it  is  "preventive  and  protective  merely,  and 
not  restorative."  But  conceding  that  the,  injunction  in  this 
case  does  approach  very  nearly  to  commanding  a  thing  to  be 
undone,  authorities  are  not  wanting  to  justify  it  even  if  viewed 
in  that  aspect,  as  appears  by  the  cases  in  which  parties  have 
been  commanded  by  injunction  not  thereafter  to  continue  to 
cause  a  stream  to  flow  irregularly,  by  which  the  plaintiff's  mill 
had  been  supplied,  and  the  current  of  which  had  been  impeded 
by  breaches  made  or  obstructions  interposed  by  the  defendant. 
In  cases  of  this  description,  as  it  is  obvious  the  injunction 
could  only  be  obeyed  by  repairing  the  breaches,  or  removing 
the  obstructions,  the  office  of  the  writ  would  appear  to  have 
been  carried  further  than  could  be  sanctioned,  viewing  it  merely 
as  prohibitory  and  conservative.  The  cases  in  which  the  writ 
of  injunction  has  been  thus  applied,  are  collected  in  Mur- 
dochs case,  2  Bland,  471  ;  see  also  Eden  on  Injunctions, 
331. 

But  the  injunction  in  this  case  is  not  put  upon  this  gronnd, 
as  I  concur  in  the  principle,  that  the  process,  unless  issued 
after  the  decree,  when  it  becomes  judicial,  can  only  be  used 
for  the  purpose  of  prevention,  and  protection,  and  not  for  the 

9* 


102  HIGH  COURT  OF   CHANCERY. 

purpose  of  commanding  the  defendant  to  undo  any  thing   he 
had  previously  done. 

The  injunction  then  being,  as  I  think,  properly  issued,  and 
for  a  purpose  within  the  fair  scope  and  object  of  the  power  of 
the  court,  to  interpose  for  the  protection  of  rights  unjustifiably 
invaded,  it  remains  to  be  considered,  how  far  the  grounds  upon 
which  it  issued  have  been  removed  by  the  answer  of  the  de- 
fendant, the  rule  being,  that  if  the  answer  swears  away  or  de- 
nies all  the  equity  of  the  bill,  the  injunction  must  be  dissolved. 

The  equity  of  this  bill  consisted  in  the  alleged  violation  by 
Green,  of  the  agreement  upon  which  the  judgment  in  the  eject- 
ment suit  by  him  against  Hill,  was  confessed,  and  in  the  im- 
puted violence  with  which  he  drove  away,  and  continued  to 
exclude  the  professors  from  the  enjoyment  of  the  privileges, 
and  the  discharge  of  the  philanthropic  and  important  duties 
with  which  they  were  charged.  It  appeared  to  me  that  unless 
the  court  interposed  to  prohibit  such  conduct,  the  defendant 
would  not  only  be  permitted  to  get  a  most  unconscientious  ad- 
vantage of  a  judgment,  against  the  letter  and  spirit  of  the  terms 
upon  which  it  was  confessed,  but  that  the  most  grievous  and 
irreparable  injury  would  be  inflicted  upon  others,  by  his  lawless 
proceedings.  The  gravamen  of  the  bill,  was  the  violation 
of  the  agreement  as  charged,  and  I  am  of  opinion,  if  the  answer 
denies,  plainly  and  positively,  this  averment,  and  further  de- 
nies that  the  defendant  has  in  any  manner  obstructed  or  inter- 
fered with  the  professors  in  the  performance  of  their  important 
duties,  in  imparting  medical  knowledge,  and  attending  upon 
the  sick,  that  upon  the  principle  which  governs  this  court  upon 
motions  to  dissolve,  the  injunction  cannot  be  maintained. 

Now  the  answer  does  deny  that  the  defendant  took  posses- 
sion in  violation  of  his  agreement,  or  by  the  use  of  force  and 
violence  of  any  description,  or  that  he  has  obstructed  or  inter- 
fered with  the  professors  in  their  attendance  upon  the  sick 
at  the  institution  ;  and  asserts  that  during  all  the  time  that  de- 
fendant was  in  possession  thereof,  they  were  in  daily  attend- 
ance upon  the  sick,  who  were  constantly  provided  with  the 
necessary  and  accustomed  nourishment  and  medicines. 


WASHINGTON  UNIVERSITY  VS.  GREEN.  103 

Looking  then  to  the  bill  and  answer  alone,  upon  the  respon- 
sive character  of  which  the  fate  of  the  injunction  must  depend  ; 
and  seeing  that  the  material  allegations  of  the  former  are  de- 
nied by  the  answer,  it  would  seem  to  follow,  that  the  motion  to 
dissolve  must  prevail,  unless  the  bill  could  be  supported  by 
testimony  taken  according  to  the  8th  section  of  the  act  of  1835, 
ch.  380.  And  this  appears  to  have  been  the  view  taken 
at  one  time  by  the  complainants  themselves,  who  subsequently 
to  the  filing  of  the  answer,  applied  for  and  obtained  an  order 
agreeably  to  the  provisions  of  the  act ;  and  perhaps  it  may  not 
be  unworthy  of  consideration,  that  their  neglect  or  failure  to 
take  evidence,  after  obtaining  authority  to  do  so,  leads  to  the 
inference  that  the  denials  of  the  answer  were  not  capable  of 
contradiction.  Prior  to  the  passage  of  this  act  of  assembly, 
affidavits  as  a  general  rule  could  not  be  read  in  opposition  to 
the  answer,  though  a  different  practice  obtained  in  one  or  two 
excepted  cases.  Eden  on  Injunctions,  326.  . 

The  attention  of  the  court,  upon  this  motion,  is  confined  ex- 
clusively to  the  injunction  ;  which  depends,  in  the  absence  of 
testimony  under  the  act  of  assembly  in  reference  to  the  allega- 
tions of  the  bill,  upon  the  question,  whether  its  averments,  con- 
stituting the  ground  of  the  injunction,  have  been  denied  by  the 
answer. 

It  is  deemed  of  course  premature  at  this  time,  to  form  or  ex- 
press any  opinion  upon  the  relative  rights  of  the  parties,  as 
founded  upon  the  deed  of  trust,  and  the  judgment  under  which 
the  defendant  purchased.  The  proper  time  for  that  will  come 
at  a  future  period,  when  it  will  receive  due  consideration. 

The  Chancellor  upon  full  reflection,  thinks  the  equity  upon 
which  this  injunction  rests  has  been  sworn  away  by  the  answer, 
and  consequently  that  it  is  his  duty  to  pass  an  order  dissolving 
it,  which  will  accordingly  be  done. 

[After  the  dissolution  of  the  injunction,  a  petition  was  filed 
by  the  defendant  Green,  the  matter  of  which,  and  the  grounds 
upon  which  it  was  resisted  by  the  complainants,  will  appear 
from  the  following  opinion  delivered  by  the  Chancellor  :] 


104  HIGH  COURT  OF  CHANCERY. 

THE  CHANCELLOR: 

It  (the  petition)  alleges  that  the  complainants  in  pursuance  of 
the  injunction,  entered  upon,  and  took  possession  of  the  prop- 
erty mentioned  in  the  proceedings,  to  which  the  defendant 
yielded,  not  being  willing  to  appear  even  as  offering  any  op- 
position to  the  order  of  the  court ;  and  it  prays,  (the  injunction 
having  been  dissolved,)  that  an  order  may  be  passed  restoring 
the  defendant  to  the  possession  of  the  property,  so  that  the  par- 
ties may  be  placed  in  the  positions  they  respectively  occupied 
when  it  was  granted. 

Upon  the  filing  of  this  petition  an  order  was  passed,  that 
the  matter  thereof  should  stand  for  hearing  on  the  second  of 
the  present  month,  provided  a  copy  was  served  on  the  opposite 
party.  This  has  been  done,  and  the  complainants  have  put  in 
an  answer  in  which  they  contend  that  the  whole  effect  of  the 
injunction  has  been  to  restrain  the  defendant  from  those  pro- 
ceedings, by  which  he  interfered  with  the  due  exercise  of  the 
rights,  privileges  and  duties  which  the  faculty  and  professors  of 
the  university  had  been  enjoying,  and  were  required  to  be  per- 
formed. 

It  has  been  already  stated,  that  the  injunction  in  this  case 
went  no  further  and  was  designed  to  go  no  further  than  to  pro- 
hibit Green,  the  defendant,  from  preventing  the  professors  con- 
stituting the  medical  faculty  of  the  corporation,  from  such  use 
of  the  buildings  and  other  property,  as  was  necessary  to  enable 
them  to  discharge  their  duties.  The  bill  alleged  that  his  con- 
duct was  such  that  these  duties  could  no  longer  be  performed, 
and  that  he  founded  his  title  thus  to  interfere,  upon  his  judg- 
ment in  the  ejectment  suit,  in  the  face  of  his  agreement  that 
the  execution  of  that  judgment  should  be  stayed  until  the  de- 
termination of  the  then  depending  chancery  cause,  of  Conkling 
and  others  vs.  the  Washington  Medical  University,  and  Green, 
in  which  the  relative  rights  of  all  the  parties  would  be  decided. 

Green  in  his  answer  denied  this  statement,  and  averred  that 
the  professors  of  the  university  had  not  been  interrupted  by  him 
in  the  performance  of  their  duties,  and  that  he  had  not  taken 
possession  of  the  property  in  violation  of  the  agreement  upon 


WASHINGTON  UNIVERSITY  VS.  GREEN.  105 

which  the  judgment  was  confessed.     And  upon  the  faith  of 
these  denials  the  injunction  was  dissolved. 

It  would  appear  to  be  obvious  from  the  answer  of  Green, 
that  he  meant  to  be  understood  as  saying  that  his  possession  of 
the  property,  however  held,  was  not  incompatible  with  such 
use  and  enjoyment  thereof  by  the  professors  as  was  indispen- 
sable to  the  fulfilment  of  their  duties  ;  for  he  says,  that  during 
all  the  time  he  was  in  the  possession,  they  continued  in  the  dis- 
charge of  their  several    duties.     In  this  state  of  the  case  it  is 
not  very  clearly  perceived,  what  sort  of  possession  it  is  to  which 
the   defendant  asks  to  be  restored.     According  to  the  theory 
of  the  answer,  the  possession  of  Green  was  perfectly  consistent 
with  the  use  of  the  buildings  by  the  professors,  and  it  was  with 
that  use  alone  that  he  was  prohibited  by  the  injunction  from  in- 
terfering.    If  he  desires  now  a  more  exclusive  possession,  so 
as  to  interfere  with,  or  prevent  the  professors  from  performing 
their  duties,  he  asks  for  that,  which  if  avowed  in  his  answer 
to  the  bill,  would  have  caused  the  injunction  to  be  continued. 
It  certainly  cannot  be  tolerated,  that  the  dissolution  of  an  in- 
junction shall  be  procured  by  stating  that  the  party  who  procures 
such  dissolution  has  done  nothing  and  means  to  do  nothing  in- 
jurious to  the  rights  of  others,  and  then  after  succeeding,  that 
he  shall  be  allowed  to  do  the  very  acts  which  he  had  disclaimed 
having  done,  or  intending  to  do. 

The  bill  in  this  case  indulged  in  a  strain  of  severe  and  highly 
colored  animadversion  upon  the  conduct  of  the  defendant,  but 
when  this  was  denied  by  the  answer,  no  attempt  was  made  to 
prove  it,  though  an  order  to  take  evidence  passed  at  the  instance 
of  the  complainant. 

This  was  significant,  and  entitled  as  I  thought  to  some  con- 
sideration upon  the  motion  to  dissolve. 

The  answer  stated — you  have  unjustly  assailed  me — I  have 
been  guilty  of  no  violence,  no  misconduct  of  any  sort ;  nor  have 
I,  nor  do  I  mean  to  interrupt  you  in  performing  your  duties. 
Upon  this  the  injunction  was  dissolved ;  but  after  the  dissolu- 
tion, an  application  is  made  for  the  restoration  of  rights  which 
the  injunction  was  never  intended  to  take  away,  and  the  asser- 


106  HIGH   COURT  OF  CHANCERY. 

tion  of  which  can  scarcely  be  reconciled  with  the  forbearance 
professed  in  the  answer. 

The  Chancellor  is  fully  sensible  of  the  inviolable  force  of 
contracts,  and  unless  parties  are  entrapped  in  making  them,  or 
they  are  brought  about  by  fraud,  surprise,  mistake,  or  accident, 
their  obligations  must  be  performed. 

The  agreement  upon  which  the  judgment  in  the  ejectment 
case  was  rendered,  appears  to  me  to  be  a  valid  and  binding  en- 
gagement. The  parties  made  it,  and  they  must  stand  by  it. 
It  is  true  the  answer  says,  that  Hill,  the  defendant  in  that  action, 
waived  it ;  but  the  bill  alleges,  that  this  Hill  was  the  mere  ser- 
vant of  the  corporation,  and  but  a  nominal  defendant,  and  that 
the  cause  was  conducted  by  counsel  employed  by  the  trustees, 
and  that  it  was  in  fact  their  suit — the  agreement  being  signed 
by  their  counsel,  and  the  counsel  of  Green. 

This  averment  of  the  bill  not  being  denied  by  the  answer, 
must,  upon  all  questions  relating  to  the  injunction,  be  regarded 
as  true  ;  and  surely  if  true,  then  a  waiver  by  Hill  of  the  agree- 
ment, cannot  be  allowed  to  prejudice  the  parties  by  whom  it 
was  made. 

If,  as  is  intimated  in  the  petition  now  under  consideration, 
the  defendant,  Green,  has  gone  further  than  was  required  by  the 
injunction,  and  has  not  only  forborne  to  interfere  with  the  use 
and  enjoyment  of  the  property  by  the  professors,  but  has  actu- 
ally surrendered  a  possession  previously  held  by  him — then  he 
has  done  that  which  the  court  did  not  command  him  to  do,  and 
for  which  he  has  no  right  to  ask  for  redress  at  its  hands.  It 
was  a  voluntary  act  on  his  part,  and  of  the  same  character  as 
the  act  of  Hill,  the  nominal  defendant  in  the  ejectment,  in  waiv- 
ing, as  alleged,  the  benefit  of  the  agreement. 

The  Chancellor  has  not  fully  considered,  and  therefore  does 
not  mean  now  to  decide,  how  far  this  court  has  the  power  to 
order  a  restoration  of  possession  of  rights,  supposing  them  to 
have  been  surrendered  under  circumstances  like  those  attend- 
ing this  case.  No  authority  for  the  application  has  been  pro- 
duced, and  it  is  believed  that  none  can  be  readily  found. 

In  the  light  in  .which  this  application  presents  itself  to  me, 


HAMILTON  VS.  ANNAPOLIS  RAIL  ROAD  CO.  1Q7 

I  am  of  opinion  that  I  ought  not  to  interfere  in  the  manner 
asked  for,  and  therefore  the  application  is  disallowed,  and  the 
petition  will  be  dismissed. 

[No  appeal  was  taken  from  either  of  the  orders  in  this  case.] 


JOHN  HAMILTON  ) 

vs.  / 

THE  ANNAPOLIS  AND  ELK  RIDGE  >      DECEMBER  TERM,  1847. 

RAIL  ROAD  COMPANY  ET  AL.  > 


[RIGHT  OF  EMINENT  DOMAIN — FORFEITURE  OF  CHARTER — VENDRO'S  LIEN.] 

NOTHING  can  be  clearer  than  that  private  property  cannot  be  taken  for  public 
use,  without  making  just  compensation  to  the  owner. 

The  right  of  eminent  domain  gives  to  legislative  authority  the  control  of  private 
property  for  public  uses,  subject  to  the  condition,  that  a  reasonable  and  just 
compensation  shall  be  made  to  the  owner. 

Any  attempt  to  exact  this  power,  without  complying  with  the  condition,  would 
be  at  war  with  the  great  principles  of  natural  justice,  and  in  direct  conflict 
with  the  constitution  of  the  United  States. 

The  land  in  question,  having  been  condemned  for  the  use  of  the  Annapolis  and 
Elk  Ridge  Rail  Road,  under  the  act  of  1826,  ch.  123,  sec.  15,  and  the  inqui- 
sition returned  to,  and  duly  confined  by,  the  proper  county  court,  the  propri- 
ety of  the  condemnation  and  use  of  the  property,  cannot  be  drawn  in  question 
in  an  accidental  or  collateral  proceeding. 

A  cause  of  a  forfeiture  of  a  charter  of  incorporation  cannot  be  taken  advantage 
of,  collaterally  or  incidentally  ;  but  it  must  be  enforced  by  sdre/acias  or  quo 
warranto  at  the  instance  of  the  government,  and  until  the  government  so  in- 
terferes, the  franchise  continues. 

So  long  as  the  charter  of  a  company  continues  in  existence,  their  property  can- 
not be  taken  from  them,  upon  the  allegation  that  it  was  acquired  by  an  abuse 
of  their  chartered  privileges. 

Whether  the  vendor's  lien  exists  or  not,  in  a  case  where  the  property  of  an  in- 
dividual is  taken  for  the  public  use  in  virtue  of  the  right  of  eminent  domain, 
is  a  question  of  no  easy  solution. 

[The  bill  filed  in  this  cause,  alleged,  that  on  the  30th  May, 
1838,  proceedings  having  been  previously  instituted  by  the  An- 
napolis and  Elk  Ridge  Rail  Road  Company,  for  condemning  a 


108  HIGH  COURT  OF  CHANCERY. 

a  portion  of  the  complainant's  land,  required  for  the  construction 
of  their  road,  a  jury  convened  for  that  purpose  by  the  company, 
met  and  condemned  certain  land  of  the  complainant  for  its  use, 
(which  the  inquisition  stated,  was  condemned  as  of  an  absolute 
estate  in  perpetuity,)  and  awarded  to  him  the  sum  of  $212,  as 
damages  therefor.  That,  on  the  31st  of  August,  of  the  same 
year,  another  portion  of  his  land,  was  in  like  manner  condemned, 
for  which  the  further  sum  of  $135  was  awarded  to  him.  That 
the  said  damages  had  never  been  paid,  and  no  conveyance  had 
been  made.  That  the  road  had  been  constructed  over  only 
part  of  these  lands,  and  the  rest  had  been  made  the  site  of  a 
public  house,  which  the  company  had  rented  for  profit,  by  rea- 
son of  which  misappropriation,  it  was  contended,  that  their 
right  to  that  portion  of  the  land  had  been  forfeited,  and  that  it 
had  therefore  reverted  to  the  complainant.  The  bill  prayed 
that  the  company  should  be  decreed  to  pay  the  money  so  due 
by  them,  and  that  in  default  thereof,  it  should  be  perpetually 
enjoined  from  passing  over  that  portion  of  the  road,  that  the 
equitable  lien  of  the  complainant  for  the  purchase  money  be 
enforced,  and  the  land  be  sold  for  its  satisfaction,  and  that  the 
part  occupied  by  the  public  house,  as  above  mentioned,  be 
delivered  to  him,  and  the  company  be  restrained  by  injunction, 
from  disturbing  him  in  the  enjoyment  of  it.  The  answer  of  the 
company  stated,  that  shortly  after  the  damages  were  awarded 
to  the  complainant,  the  same  had  been  tendered  him,  which 
he  refused  to  take;  and,  that  the  money  so  tendered,  had  been  for 
a  long  time  kept  ready,  to  be  given  him  on  application.  That 
its  property  had  been  conveyed  to  trustees  for  the  benefit  of  its 
creditors,  and  was  then  vested  in  James  Iglehart,  and  William 
S.  Green.  That,  by  an  act  of  assembly,  passed  at  December 
session  1841,  chap.  168,  it  was  authorized  to  issue  bonds,  pay- 
able partly  out  of  net  income  and  profits,  and  that  it  had  been, 
and  was,  willing  to  issue  a  bond  or  bonds,  to  the  complainant 
for  his  debt,  or  if  the  court  should  consider  the  debt  a  lien  on 
the  property,  and  that  such  a  course  would  be  proper,  it  was 
willing  to  apply  its  revenues  and  profits  to  pay  it.  That  the 
house  built  by  it  was  useful  as  a  depot,  and  that  the  complain- 


HAMILTON  VS.  ANNAPOLIS  RAIL  ROAD  CO.  109 

ant  had  cut  down  valuable  trees  near  it,  the  value  of  which 
ought  to  be  deducted  from  the  amount  due  to  him.  After  this 
answer  was  filed,  the  trustees  were  made  parties  by  amend- 
ment of  the  bill,  and  in  their  answer  took  generally  the  ground 
taken  by  that  of  the  company  ;  some  testimony  was  taken,  re- 
lating to  the  value  of  the  public  house,  and  the  terms  on  which 
it  was  rented,  the  consideration  of  which  was  deemed  un- 
necessary by  the  Chancellor,  under  the  view  which  he  took  of 
the  case :] 

THE  CHANCELLOR: 

Nothing  can  be  clearer,  than  that  private  property  cannot 
be  taken  for  public  use,  without  making  just  compensation  to 
the  owner.  The  right  of  eminent  domain  gives  to  legislative- 
authority  the  control  of  private  property,  for  public  uses,  but 
this  power  is  subject  to  the  condition,  that  a  reasonable  and 
just  compensation  shall  be  made  to  the  owner,  and  any  attempt 
to  exert  the  power,  without  complying  with  the  condition, 
would  not  only  be  at  war  with  the  great  principles  of  natural 
justice,  which  lie  at  the  foundation  of  the  social  compact,  but 
would  be  in  direct  conflict  with  the  constitution  of  the  United 
States.  It  follows,  therefore,  irresistibly,  that  as  the  complain- 
ant has  not  received  compensation  for  that  portion  of  his  pro- 
perty, which  has,  through  the  medium  of  this  company,  been 
taken  from  him  for  public  use,  that  he  is  now  entitled  to  com- 
pensation ;  and  this  compensation  is  to  be  paid  him,  not  in  the 
bonds  of  the  company,  issued  under  the  act  of  1841,  but  in 
money. 

The  bill  takes  the  ground,  and  the  argument  of  the  complain- 
ant's solicitor  urged  the  same  view  of  the  subject,  that  the  land 
condemned  by  the  inquisition  of  August,  1838,  was  not  neces- 
sary for  the  use  of  the  road,  and  that,  therefore,  as  to  that  por- 
tion of  the  premises,  the  company  should  be  ordered  by  the 
decree  of  this  court  to  deliver  the  possession  to  the  complain- 
ant. I  cannot  bring  myself  to  think  that  such  a  decree  would 
be  at  all  justifiable.  The  15th  section  of  the  act  of  1826, 
chapter  123,  which  so  far  as  the  mode  of  proceeding  in  the 
10 


HO  HIGH  COURT  OF  CHANCERY. 

condemnation  of  property,  necessary  to  the  construction  and 
repair  of  the  road  is  concerned,  is  confessedly  made  a  part 
of  the  charter  of  this  company,  directs  that  these  inquisitions 
shall  describe  the  property  taken,  or  the  bounds  of  the  land 
condemned,  &c.,  these  inquisitions,  thus  describing  the  prop- 
erty, or  the  bounds  of  the  land  condemned,  are  directed  by  the 
same  section,  to  be  returned  by  the  sheriff,  to  the  clerk  of  the 
county,  and  by  him  to  be  filed,  and  unless  sufficient  cause  to  the 
contrary  is  shown,  the  court  is  directed  to  confirm  the  inquisi- 
tion at  the  next  ensuing  session. 

All  this  was  done  in  the  present  case.  The  property  con- 
demned was  described  in  the  inquisition,  which  was  returned 
to  the  clerk  of  the  proper  county  court,  was  by  him  filed,  and 
no  cause  to  the  contrary  having  been  shown,  the  inquisition 
was  duly  confirmed  by  the  court,  and  recorded  by  the  clerk, 
as  directed  by  the  statute.  These  proceedings  took  place  in 
year  1838,  from  which  time  to  the  filing  of  this  bill,  in  1846, 
they  have  remained  without  objection  from  any  quarter.  It 
seems  to  me,  impossible  to  contend  successfully,  that  under 
these  circumstances,  and  in  this  incidental  collateral  proceeding, 
the  propriety  of  the  condemnation,  and  use  of  this  property,  can 
be  drawn  in  question. 

A  cause  of  forfeiture  of  a  charter  of  incorporation,  cannot 
certainly  be  taken  advantage  of  collaterally,  or  incidentally.  It 
must  be  enforced  by  scire  faciasy  or  quo  warranto,  at  the  in- 
stance of  the  government,  and  until  the  government  so  interferes 
the  franchise  continues. 

Canal  Company  vs.  Rail  Road  Company,  4  G.  fy  «/.,  1,  and 
as  the  charter  of  the  company  cannot  be  forfeited,  unless  pro- 
ceedings for  that  purpose  be  instituted  by  the  government,  I 
am  at  a  loss  to  conceive  how  their  property  can  be  taken  from 
them  as  forfeited,  so  long  as  the  charter  remains  in  existence. 
By  the  condemnation  of  the  property  in  question,  and  the  confir- 
mation of  that  condemnation  by  the  county  court,  it  has  been 
ascertained  by  the  proper  authority  that  such  property  was  re- 
quired for  the  purposes  of  the  company.  And  yet  whilst  that 
judgment  stands,  and  the  corporate  franchises  of  the  company, 


HAMILTON  VS.  ANNAPOLIS  RAIL  ROAD  CO.  m 

under  which  the  condemnation  was  made,  are  in  full  force,  it  is 
proposed  by  a  collateral  proceeding  to  take  from  them  their 
property,  upon  the  allegation,  that  it  was  acquired  by  an  abuse 
of  their  chartered  privileges.  My  decided  conviction  is,  that 
this  cannot  be  done,  and  that  the  complainant,  having  failed  to 
show  cause  against  the  condemnation  at  the  proper  time,  is 
not  now  at  liberty,  to  dispute  its  validity,  or  necessity. 

If  by  applying  this  property  to  a  purpose  not  warranted  by 
the  charter,  the  company  have  exposed  themselves  to  the  pen- 
alty of  a  forfeiture,  and  to  all  the  consequences  which  would 
ensue  from  such  forfeiture,  the  complainant  is  not  the  party, 
nor  is  this  the  proceeding  by  which  the  question  is  to  be  tried. 

But  as  already  observed,  the  complainant  is  clearly  entitled 
to  be  paid  the  compensation  awarded  him  by  the  jury,  and  I 
cannot  think  that  his  right  to  such  payment  can  be  in  any  way 
affected  by  the  act  of  1841,  ch.  168,  before  referred  to. 

But  the  complainant,  besides  praying  for  the  payment  of  the 
sums  awarded  him  by  the  jury,  as  damages  for  the  coindemna- 
tion  of  this  land,  asks  that  his  equitable  lien  as  vendor,  may  be 
enforced,  and  that  the  land  may  be  sold  for  the  satisfaction 
thereof.  How  far  the  complainant  may  be  entitled  to  the  lien 
of  a  vendor  to  enforce  payment  of  the  purchase  money,  is  a 
question  not  free  from  difficulty.  He  did  not  agree  to  sell  the 
land,  and  the  proceeding  adopted  by  the  company  under  the 
15th  section  of  the  act  of  1826,  ch.  123,  became  necessary  in 
consequence  of  the  failure  of  the  parties  to  agree.  By  that 
proceeding  the  land  was  taken  from  him  without  his  consent, 
and  of  course  there  was  no  contract  to  sell.  It  was  a  con- 
demnation or  dedication  of  so  much  of  the  property  of  an  in- 
dividual for  the  public  use,  taken  in  virtue  of  the  right  of  emi- 
nent domain;  but  upon  the  condition  that  a  just  compensation 
should  be  made  to  the  owner.  Whether,  under  these  circum- 
stances, the  equitable  lien  of  the  vendor  exists,  or  not,  is  a 
question  of  no  easy  solution  ;  but  looking  to  the  language  of 
the  act,  and  indeed  independently  of  any  such  language,  it 
must  be  conceded,  that  the  property  cannot  be  taken  from  the 
complainant  until  the  valuation  placed  upon  it  by  the  jury  is 


HIGH  COURT  OF  CHANCERY. 

paid  or  tendered.  The  answer  alleges  a  tender,  but  there  is  no 
proof  of  it,  and  it  cannot  of  course  be  assumed  without  proof. 

The  complainant  is  not  suing  at  law  for  the  recovery  of  the 
land,  but  in  equity  for  the  payment  of  the  money,  upon  the 
ground,  that  the  payment  cannot  be  enforced  at  law,  in  con- 
sequence of  the  insolvency  of  the  company.  He  has  forborne 
to  institute  these  proceedings  until  the  road  is  finished,  and 
valuable  and  expensive  improvements  are  made  upon  the  prop- 
erty ;  and  I,  therefore,  am  of  opinion ;  that  in  equity,  he  is 
entitled  to  no  more  than  a  decree  for  a  payment  of  the  sums 
awarded  him  by  the  jury,  with  interest  from  the  period  of  the 
confirmation  of  the  inquisitions  by  the  court.  A  decree  will  be 
signed  for  that  purpose,  payable  out  of  the  revenues  of  the 
company,  within  some  reasonable  time,  and  in  default  thereof, 
the  revenues  will  be  sequestered  until  the  claim  is  paid.  The 
complainant  is,  also,  I  think,  entitled  to  his  costs. 

It  may  be  further  observed  in  reference  to  the  prayer  of  the 
bill,  that  the  complainant  may  be  restored  to  a  possession  of  a 
part  of  the  land  condemned,  that  if  any  such  right  exists,  under 
the  circumstances  of  this  case,  his  remedy  is  by  action  of  eject- 
ment, and  not  by  bill  in  equity. 


CHARLES  A.  WATERS,  ~\ 

vs.  DECEMBER  TERM,  1847. 

CHARLES  HOWARD  AND  WIFE  ET  AL.  ) 

[SPECIFIC    PERFORMANCE ELECTION.] 

UPON  a  bill  for  the  specific  performance  of  a  contract,  the  court  must  entertain 
no  reasonable  doubt  of  the  existence  of  the  contract,  and  be  satisfied  that  it 
is  one,  which,  looking  to  what  is  just  and  reasonable,  ought  to  be  enforced. 

The  specific  performance  of  contracts  in  equity,  is  not  a  matter  of  absolute 
right  in  the  party,  but  of  sound  discretion  in  the  court ;  and  unless  the  court 
is  satisfied  that  the  application  is  fair,  just  and  reasonable  in  every  respect,  it 
will  refuse  to  interfere,  but  leave  the  party  to  his  remedy  at  law  for  compen- 
sation in  damages. 

In  contracts  relating  to  personal  property,  unless  it  can  be  clearly  shown,  that 
adequate  compensation  cannot  be  given  by  an  action  at  law,  chancery  will 
not.  interfere. 


WATERS  VS.  HOWARD.  113 

If  the  interest  which  a  creditor  takes  by  the  will,  is  not  co-extensive  with,  or 
of  the  same  nature  of,  that  to  which  he  is  entitled  from  the  testator  as  his 
debtor,  he  will  be  entitled  to  both  interests. 

The  degree  of  intention  necessary  to  raise  a  case  of  election  must  plainly  ap- 
pear upon  the  face  of  the  will,  but  the  court  is  not  to  disregard  what  amounts 
to  a  moral  certainty  of  the  intention  of  the  testator. 

Though  evidence  debars  the  will,  will  not  be  admitted  to  prove  or  disprove  such 
intention,  there  is  no  valid  objection  to  such  evidence  to  show  the  state  and 
circumstances  of  the  property. 

A  party  cannot  take  a  benefit  under  a  will,  and  at  the  same  time  defeat  its  pro- 
visions. 


[This  case  originated  in  the  equity  side  of  Baltimore  County 
Court,  and  was  thence  transferred  to  this  court. 

The  bill  was  filed  by  Charles  A.  Waters  and  Ann  Rebecca, 
his  wife,  (since  deceased,)  for  the  specific  performance  of  a 
contract,  entered  into  by  the  late  Charles  Waters,  (grandfather 
of  the  said  Charles  A.)  previous  to,  and  in  consideration  of 
the  intermarriage  of  the  latter  with  the  said  Ann  Rebecca,  to 
purchase  for  the  complainants,  on  the  consummation  of  the  in- 
tended marriage,  a  farm,  to  be  fully  stocked  ;  to  pay  all  the  debts 
of  the  said  Charles  A.,  existing  at  the  time  of  the  marriage — 
and  to  furnish  them  with  adequate  means  of  subsistence  during 
the  first  year  thereafter.  The  bill  stated,  that  in  part  perform- 
ance thereof,  the  grandfather  shortly  after  the  marriage,  purchased 
a  farm  in  Baltimore  county,  containing  about  189  acres,  and  put 
the  complainants  in  possession,  having  partly  stocked  it,  and 
was  about  to  pay  the  debts  of  the  said  Charles  A.,  amounting 
to  about  $2000,  when  he  was  prevented  by  a  sickness  which 
caused  his  death.  The  farm  was  only  partly  stocked — and  no 
provision  had  been  made  for  the  complainant's  support  during 
the  year  ensuing  their  marriage.  Elizabeth  A.  Howard  and 
Rebecca  A.  White,  granddaughters  of  the  deceased  and  sisters 
of  Charles  A.  Waters,  together  with  their  husbands  and  infant 
children,  and  Freeborn  G.  Waters,  the  trustee  of  the  deceased, 
were  made  parties.  The  answers  admitted  the  purchase  of  the 
farm  by  the  deceased,  and  the  occupancy  thereof  by  the  com- 
plainant after  his  marriage,  but  denied  all  intention  on  the  part 
of  the  deceased,  to  put  it  at  his  control  and  disposal  or  to  give 
10* 


114  HIGH  COURT  OF  CHANCERY. 

him  a  larger  share  of  his  estate  than  his  other  grandchildren, 
as  he  had  clearly  expressed  his  opinion  to  that  effect.  That  by 
so  doing,  the  object  of  the  deceased,  which  was  to  afford  to  his " 
grandson  and  wife  a  competent  support  from  the  use  of  the  farm, 
would  have  been  defeated ;  and  that  the  death  of  the  wife, 
which  happened  in  January,  1847,  determined  the  right  to  a  con- 
veyance, if  any  existed.  The  promise  to  pay  the  debts  above- 
mentioned,  they  insisted,  was  made  upon  condition  of  the  said 
Charles  A.  reforming  his  habits,  alleged  to  be  extravagant, 
which  had  not  been  complied  with  ;  that  if  any  such  agreement 
was  made,  it  was  satisfied  by  the  provision  (hereinafter  des- 
cribed) in  the  will  of  the  deceased,  for  his  grandson  and  his 
wife  and  children  ;  that,  said  property  was  intended  by  the  tes- 
tator to  be  disposed  of  by  his  will,  and  that  the  complainant  by 
electing  to  take  there  under,  could  no  longer  claim  the  same,  in- 
dependent of  the  will.  The  statute  of  frauds  was  also  pleaded 
in  bar  of  the  relief  prayed.  By  the  testator's  will,  all  the  residue 
of  his  estate,  after  certain  small  legacies,  was  devised  in  trust 
to  F.  G.  Waters,  to  hold  the  income,  interest,  rents  and  profits 
of  one-third  part  of  said  residue,  for  the  use  of  the  complain 
ant  during  his  life,  such  income,  &c.,  to  be  paid  to  him  from 
time  to  time  as  they  might  accrue  ;  and  after  his  death  to  his 
children  in  fee,  and  failing  children,  to  the  other  two  grand- 
children of  the  testator,  to  whom  the  remaining  two-thirds  were 
in  like  manner  devised.  It  appeared  from  agreements  of  coun- 
sel, that  the  property  in  dispute  was  purchased  from  Benjamin 
Moore,  on  the  17th  of  February,  1846  ;  that  the  whole  estate  of 
the  testator,  including  this  property,  was  worth  nearly  $150,000, 
and  the  property  in  dispute  worth  about  $9000.  A  number  of 
letters  were  returned  with  the  commission,  and  the  depositions 
of  some  witnesses  were  taken.  The  letters  were  written  by  the 
testator  to  his  grandson  and  to  the  lady  whom  he  afterwards 
married,  in  which  he -spoke  of  buying  a  farm  and  establishing 
them  upon  it,  and  in  one  of  them,  speaking  of  his  grandson's 
debts,  he  said,  "they  mustbe  paid."  The  ground  taken  in  the 
bill  was,  that  the  alleged  contract  was  made  in  consideration  of 
the  subsequent  marriage,  and  was,  therefore,  for  a  valuable  con- 


WATERS  VS.  HOWARD.  115 

sideration.  The  existence  of  this  contract  was  denied  by  the 
answers,  which  insisted,  that  the  testator  designed  giving  them 
the  use  only  of  the  property ;  this  position  being  based  upon 
the  various  acts  of  the  testator,  and  his  declarations,  oral  and 
written.] 

THE  CHANCELLOR: 

This  question  can  of  course  only  be  determined  by  a  careful 
examination  of  the  evidence,  and  after  having  read  it  with  much 
attention,  I  find  it,  to  say  the  least,  very  questionable,  whether 
the  elder  Mr.  Waters  did  mean  to  pass  to  the  complainants, 
or  to  the  surviving  complainant,  in  any  event,  such  a  title  to  the 
property  in  controversy  as  is  sought  to  be  enforced  by  this  bill. 

Looking  to  the  whole  evidence,  written  and  oral,  I  am  strong- 
ly inclined  to  the  opinion,  that  the  ground  taken  by  the  defence 
is  the  true  one,  and  that  the  purchase  of  this  farm,  and  the  plac- 
ing the  grandson  upon  it,  was  intended  for  the  double  purpose, 
of  given  him  the  means  of  earning  a  present  support,  and  as  an 
experiment,  by  which  the  grandfather  hoped  to  wean  him  from 
his  extravagant  habits.  Any  other  supposition  would  subject 
the  grandfather  to  the  imputation  of  having  practiced  upon  his 
grandson  and  wife,  the  grossest  imposition.  If,  as  thecomplain- 
0ants  say,  they  were  induced  to  marry  upon  the  faith  of  the  en- 
gagement of  old  Mr.  Waters,  fully  disclosed,  to  give  them  the 
title  to  this  farm,  and  to  perform  the  other  stipulations  set  up 
in  the  bill,  and  he,  immediately  after  the  marriage,  took  the  title 
to  himself,  he  was  guilty  of  a  degree  of  cruelty  and  deception 
towards  them  wholly  inconsistent  with  that  affection  and  regard 
for  their  welfare  which  appears  upon  the  face  of  all  his  letters, 
and  by  the  whole  evidence.  The  marriage  took  place  on  the 
4th  of  February,  1846,  and  the  deed  from  Moore  to  the  elder 
Mr.  Waters  was  executed  on  the  17th  of  the  same  month  and 
year.  Now,  can  it  readily  be  believed,  that  this  old  gentleman 
would  have  entrapped  these  young  people  into  getting  married 
by  an  agreement  to  make  them  the  owners  of  this  property,  and 
then  in  thirteen  days  from  that  time  shamefully  violate  his  en- 
gagement by  taking  and  keeping  the  title  in  himself?  Such  a 


HIGH  COURT  OF  CHANCERY. 

supposition  is  irreconcilable  with  the  nature  of  his  feelings  and 
relations  towards  them,  and  to  be  credited,  must  be  strongly 
supported  by  evidence. 

Much  stress  has  been  laid  by  the  complainant's  counsel  upon 
the  case  of  Smith  et  al.  vs.  Gittings  etal.,  decided  by  the  Court 
of  Appeals  at  December  term,  1845.  That  case  decides,  what 
is  believed  to  have  been  well  settled  before,  that  marriage  is  a 
valuable  consideration,  and  that  a  promise  made  in  consideration 
of  marriage,  cannot  be  revoked  at  the  will  of  the  party  who 
made  it.  But  the  evidence  in  that  case,  as  it  appears  to  me,  of 
the  promise,  was  of  a  far  more  conclusive  character,  than  in 
this.  Indeed,  in  that  case,  there  could  be  no  doubt,  looking 
to  the  declarations  and  acts  of  Mr.  Dugan,  both  before,  and 
subsequent  to  the  marriage,  that  the  property  in  question  be- 
longed to  his  daughter  Mrs.  Smith,  and  her  children,  and  there 
was  not  a  single  act  or  declaration  inconsistent  with  that  view 
of  the  case.  In  this  case,  as  I  have  already  observed,  there  is 
much  evidence,  leading  to  a  different  conclusion,  and  various 
considerations  of  prudence,  calculated  to  deter  the  grandfather 
from  placing  this  property  at  the  disposal  of  his  grandson. 

Now,  this  being  a  case  in  which  the  complainants  call  upon 
the  court  to  interfere  in  their  favor,  by  enforcing  the  specific  ex- 
ecution of  a  contract,  they  must  come  before  it  with  a  much, 
stronger  case,  than  if  they  were  acting  defensively,  and  merely 
resisting  such  an  application  made  by  the  adverse  party — under 
the  circumstances  of  this  case,  the  court  must  entertain  no  rea- 
sonable doubt  of  the  existence  of  the  contract,  and  be  satisfied 
that  it  is  one,  which  looking  to  what  is  just  and  reasonable, 
ought  to  be  enforced.  2  Story,  Equity,  sec.  769 ;  Seymour  vs. 
Delancey,  6  Johns.  Ch.  Rep.,  222. 

But  there  are  other  grounds  upon  which,  in  my  opinion,  the 
relief  prayed  for  in  this  case  must  be  refused.  It  is  establish- 
ed by  the  cases,  and  by  writers  of  the  highest  distinction,  that 
the  specific  execution  of  contracts'  in  equity  is  not  a  matter  of 
absolute  right  in  the  party,  but  of  sound  discretion  in  the  court, 
and  that  unless  the  court  is  satisfied,  that  the  application  to  it 
for  this  extraordinary  assistance,  is  fair,  just  and  reasonable,  in 


WATERS  VS.  HOWARD.  117 

every  respect,  it  will  refuse  to  interfere,  but  leave  the  party  to 
his  remedy  at  law,  for  a  compensation  in  damages.  2  Story, 
Equity*  sees.,  769,  770;  Carberry  vs.  Tannehill,  1  Har.  if 
Johns.,  224;  Seymour  vs.  Delancey,  2  Johns.  Ch.  Rep.,  222. 

Now,  what  is  the  nature  of  the  application  in  the  present  case, 
and  how  is  the  court  to  afford  the  redress  which  is  asked  of  it? 
The  promise  charged  in  the  bill,  and  established  by  the  evi- 
dence— if  indeed  any  promise  is  shown — was  to  the  surviving 
complainant  and  his  late  wife,  then  Miss  Somerville,  and  was 
unquestionably  intended,  if  made  at  all,  to  provide  for  them,  and 
their  children,  if  any  should  be  born,  a  support.  But  the  wife 
is  dead,  and  there  was  no  issue  of  the  marriage,  and  the  sur- 
viving husband  now  claims  to  have  this  contract  specifically 
enforced  for  his  exclusive  benefit,  although  he  has  received,  in 
another  form,  and  by  the  will  of  his  grandfather,  property  to  a 
much  larger  amount.  The  contract  asserted  in  the  bill,  it  will 
be  observed,  is  not  merely  a  contract  to  convey  title  to  a  cer- 
tain parcel  of  land,  but  embraces  an  engagement  to  stock  it — 
to  pay  the  debts  of  the  grandson — and  support  him  and  his 
family,  for  the  first  year  after  his  marriage.  Now,  this  contract, 
if  enforced  at  all,  is,  as  is  said  in  the  cases,  to  be  enforced,  ex 
vigore,  and  with  unmitigated  severity.  It  must  be  carried  into 
execution  in  all  its  parts,  though  a  part  of  the  consideration  has 
unquestionably  failed,  by  the  death  of  the  wife,  childless ;  as  it 
is  impossible  to  suppose,  if  the  grandfather  ever  did  make  such 
a  binding  engagement  as  is  contended  for,  that  the  wife  and 
children  were  not  in  his  contemplation,  and  constituted,  in  part 
at  least,  the  motive  for  his  promise.  It  seems  to  me  eminently 
proper,  that  a  case  like  this,  should  be  sent  to  law,  where,  in  the 
language  of  Chancellor  Kent,  in  Seymour  and  Delancey,  "relief 
can  be  afforded  in  damages,  with  a  moderation  agreeably  to 
equity  and  good  conscience,  and  where  the  claims  and  preten- 
sions of  each  party,  can  be  duly  attended  to,  and  be  admitted 
to  govern  the  assessment" — and  in  this  case,  there  is  a  peculiar 
reason  why  the  powers  of  the  court  should  not  be  exerted  in 
the  form,  in  which  it  is  applied  to.  The  contract  we  have  seen, 
is  not  confined  to  real  estate,  but  extends  to  goods  and  chattels, 


118          HIGH  COURT  OF  CHANCERY. 

and  the  payment  of  debts,  and  it  is  certainly  a  general  rule,  that 
with  regard  to  contracts  respecting  goods,  and  other  things  of 
a  merely  personal  nature,  this  court  will  not  decree  specific  per- 
formance, except  in  cases  in  which  a  court  of  law  could  not 
give  adequate  compensation  in  damages.  Unless,  therefore,  in 
contracts  relating  to  personal  estate,  it  be  clearly  shown,  that 
adequate  compensation  cannot  be  given  by  an  action  at  law, 
chancery  will  not  interfere.  2  Story,  Equity,  sees.,  716,  717, 
718. 

This  court,  then,  looking  to  all  the  circumstances  of  this 
case,  seeing  that  in  the  state  of  things  which  now  exists,  it 
would  be  impossible  to  frame  a  decree  which  would  do  justice 
as  between  these  parties,  being  moreover  convinced,  that  the 
leading  motive  which  induced  the  grandfather  to  make  the 
promise — if  he  did  make  such  promise — can  no  longer  operate, 
I  am  not  disposed  to  carry  this  alleged  contract  into  execution, 
but  will  leave  the  party  to  his  remedy  at  law,  where  the  jury 
can  afford  him  the  relief  in  damages,  which  they  may,  under  all 
the  circumstances,  think  him  entitled  to. 

If  this  court  should  decree  the  specific  performance  of  this 
contract,  and  direct  the  title  to  this  property  to  be  conveyed  to 
the  complainant,  so  as  to  give  him  the  dominion  over  it,  I  am 
persuaded,  I  should  be  doing  that  which  his  grandfather  never 
intended,  and  for  which,  as  I  think,  there  is  no  sufficient  justi- 
fication in  the  proof ;  for  not  a  single  witness  has  spoken  of  the 
nature  or  quality  of  the  title  which  the  complainant  was  to  re- 
ceive— and  if  we  are  to  judge  from  the  will  of  his  grandfather, 
dated  but  two  months  after  the  marriage,  and  the  character  of 
the  interest  which  the  complainant  takes  under  it,  there  is  the 
strongest  reason  for  thinking,  that  the  absolute  transfer  to  him 
of  the  title  to  this  property,  would  be  most  repugnant  to  the 
intentions  of  the  grandfather,  then  or  previously  entertained. 

The  Chancellor  stated  it  as  his  opinion,  looking  to  the  nature 
and  value  of  the  property  in  dispute,  compared  with  the  devise 
to  the  complainant  by  the  testator,  that  the  contract,  if  establish- 
ed, could  not  be  considered  as  satisfied  by  the  subsequent  de- 
vise ;  and  referred  to  Roper  on  Leg.,  46,  48,  to  show  that  if 


WATERS  VS.  HOWARD.  119 

the  interest  which  the  creditor  takes  by  the  will,  is  not  ejusdem 
generis,  not  being  co-extensive  with,  or  of  the  same  nature  of 
that  to  which  he  is  entitled  from  the  testator,  as  his  debtor,  the 
legatee  will  be  entitled  to  both  interests. 

But  although,  in  my  opinion,  the  interest  which  this  com- 
plainant takes  under  the  will  of  his  grandfather  cannot  be  re- 
garded as  a  satisfaction  of  his  claim  founded  upon  the  alleged 
contract,  I  yet  think  the  will  puts  him  to  his  election,  and  that 
he  cannot  claim  under  the  will  and  under  the  contract  also. 

There  can  be  no  doubt  that  the  degree  of  intention,  neces- 
sary to  raising  a  case  of  election,  must  plainly  appear  upon  the 
face  of  the  will,  but  then  the  court  is  not  to  disregard  what 
amounts  to  a  moral  certainty  of  the  intention  of  the  testator. 
McElfresh  vs.  Schley  and  Barr,  2  Gill,  181. 

And  though  evidence  dehors  the  will,  will  not  be  admitted  to 
prove,  or  disprove,  such  intention,  there  seems  to  be  no  valid 
objection  to  such  evidence  to  show  the  state  and  circumstances 
of  the  property.  Judd  vs.  Pratt,  13  ves.,  174;  2  Roper  on  Leg- 
acies, 390. 

Now,  can  there  be  a  doubt  that  the  testator  did  intend  to  dis- 
pose of  this  property  as  his  own.  He  took  the  deed  to  himself 
on  the  17th  of  February,  1846,  and  on  the  2d  of  April  follow- 
ing, he  made  his  will,  by  which  he  devised  to  the  trustee,  his 
whole  estate  of  every  kind  and  description.  I  throw  out  of 
riew  his  declaration  to  Mr.  Poe,  which  has  been  excepted  to, 
but  I  suppose  the  fact  of  his  taking  the  deed  to  himself  is  evi- 
dence, to  show  the  state  arid  circumstances  of  property. 

Now,  is  it  not  morally  certain,  that  the  testator  intended  to 
dispose  of  his  will  of  this  property,  and  is  not  that  intention  ap- 
parent upon  the  face  of  the  will  itself,  especially  when  taken  in 
connection  with  the  state  and  circumstances  of  the  property. 
He  unquestionably  had  the  legal  title,  and  his  intention,  as  it 
appears  to  me,  might  be  as  well  disputed  to  dispose  of  any 
other  part  of  his  estate  as  this. 

There  is  another  intention  manifested  upon  the  face  of  this 
will,  which  would  be  frustrated  by  the  success  of  this  attempt 
on  the  part  of  the  complainant ;  and  that  is  to  place  the  grand- 


120  HIGH  COURT  OF  CHANCERY. 

children  on  a  footing  of  entire  equality.  It  is  perfectly  clear, 
that  the  testator  intended  to  give  to  each  the  same  precise  in- 
terest in  his  estate,  in  regard  alike  to  quantity  and  quality,  and 
to  permit  this  arrangement  to  be  disturbed,  would  be  to  defeat 
a  cherished  object  of  the  testator. 

The  rule  as  assented  by  the  Court  of  Appeals  in  the  case  of 
McElfresh  vs.  Schley  and  Barr,  is,  "that  a  man  shall  not  take 
a  benefit  under  a  will,  and  at  the  same  time  defeat  the  provi- 
sions of  the  instrument,"  &c.,  and,  as  according  to  my  view  of 
this  case,  the  complainant  is  now  attempting,  by  this  bill,  to 
violate  this  rule,  I  should  on  this  ground,  if  none  other  existed, 
refuse  him  relief. 

[The  decree  in  this  case  was  affirmed  on  appeal.] 


JAMES  OWINGS, 

vs. 
WILLIAM  BALDWIN 

AND 

GEORGE  WHEELER. 


DECEMBER  TERM,  1847. 


[PART  PERFORMAKCE — SPECIFIC  EXECUTION.] 

THERE  can  be  no  doubt,  that  if  a  party  has  succeeded  in  proving  a  contract, 
and  in  showing  that  it  has  been  in  part  performed,  he  is  entitled  to  have  it 
specifically  executed. 

This  right  is  founded,  not  upon  the  notion  that  part  performance  is  a  compli- 
ance with  the  statute  of  frauds,  but  upon  the  ground,  that  it  takes  the  case 
entirely  out  of  the  statute. 

In  order  to  take  a  case  out  of  the  statute,  on  the  ground  of  part  performance, 
the  plaintiff  must  make  out,  by  clear  and  satisfactory  proof,  the  existence  of 
the  contract,  as  laid  in  the  bill,  and  the  act  of  part  performance  must  be  of 
the  identical  contract  set  up  by  him. 

It  is  not  enough  that  the  act  is  evidence  of  some  agreement :  but  it  must  be  un- 
equivocal and  satisfactory  evidence  of  the  particular  agreement  charged  in 
the  bill. 

Where  delivery  of  possession  is  relied  upon,  it  is  indispensable  that  such  deliv- 
ery to,  and  taking  possession  by,  the  defendant,  is  referrable  to  the  contract 
alleged  in  the  bill,  and  not  to  a  distinct  or  different  title. 


OWINGS  VS.  BALDWIN  AND  WHEELER.  121 

[The  bill  in  this  case  alleged  that  in  the  spring  of  1845,  the 
defendants  agreed  to  purchase  of  the  complainant,  certain  lands 
in  Howard  district,  on  which  there  were  erected  a  cotton 
factory  and  other  improvements,  for  the  sum  of  $20,000,  of 
which  $5000,  were  to  be  paid  in  cash  on  the  delivery  of  pos- 
session, fixed  for  1st  June,  1845,  $1666  66|,  in  twelve  months 
thereafter,  with  interest  on  the  unpaid  balance,  and  the  residue 
in  equal  instalments  of  5,  10,  and  15  years,  with  interest  on 
the  balances  unpaid  ;  privilege  being  given  to  pay  the  whole 
before  if  desired.  No  written  agreement  was  alleged  to  have 
been  made  by  the  parties,  but  a  memorandum  was  filed  with 
the  bill,  said  to  have  been  drawn  up  by  the  complainant,  and 
acknowledged  by  the  defendants  to  be  a  true  statement  of  the 
terms  agreed  upon.  The  bill  stated,  that  possession  had  been 
delivered  on  the  1st  June,  1845,  under  the  agreement ;  charged 
the  defendants  with  a  refusal  to  comply  with  the  terms  of  sale  ; 
and  prayed  for  a  specific  performance. 

The  joint  answer  of  the  defendants,  denied  their  acceptance 
of  the  terms  contained  in  the  complainant's  exhibit,  and  a 
paper  was  filed  therewith  differing  in  some  respects  from  that 
of  the  complainant,  but  agreeing  as  to  the  price  and  times  of 
payment,  which  the  defendants  said  had  been  prepared  by  them, 
and  which  the  complainant  had  requested  them  i.?  keep,  as  a 
correct  statement  of  the  offer  made  by  him.  The  answer  stated 
that  the  defendants  were  at  first  willing  to  accept  this  offer, 
but  difficulties  presenting  themselves,  as  to  the  complainant's 
title,  and  wishing  to  avoid  loss  of  time,  they  agreed  to  take 
possession  of  the  premises  at  once,  and  pay  to  the  complainant 
a  rent  of  $900,  until  he  should  be  able  to  give  them  a  clear 
undisputed  title  thereto  ;  but  they  expressly  denied  that  this 
arrangement  was  made  in  pursuance  of  the  original  agreement. 
This  position  was  sustained  by  the  testimony  of  H.  N.  Gam- 
brill,  and  Neilson  Poe,  the  former  of  whom  said,  "after  the 
title  was  ascertained,  or  thought  to  be  defective,  and  before 
they  (the  defendants)  entered  into  possession,  Mr.  Owings, 
(the  plaintiff)  agreed  that  they  should  take  possession  of  the 
property,  and  pay  a  rent  at  the  rate  of  $900  a  year,  I  believe, 
11 


122  HIGH  COURT  OF  CHANCERY. 

until  the  right  was  rendered  perfect,  which,  it  was  then 
believed,  would  be  six  weeks  from  the  time  they  took  posses- 
sion, according  to  Mr.  Owings'  promise."  And  in  -another 
place  :  "all  parties  were  apprised  of  the  alleged  defect  in  the 
title,  and  possession  was  given  under  the  provisional  arrange- 
ment for  a  tenancy."  The  latter,  who  had  conducted  the 
negotiations  for  the  defendants,  said  :  "the  object  of  this 
arrangement  was,  to  secure  to  them,  (the  defendants,)  the  right 
to  withdraw  from  the  property,  without  being  hampered  by  it 
as  purchasers,  in  case  the  title  could  not  be  perfected  in  a  rea- 
sonable time."  He  also  said,  that  in  consequence  of  complain- 
ant's failure  to  dispel  the  cloud  which  enveloped  the  title,  the 
defendants,  prior  to  February,  1846,  requested  him  to  notify 
the  complainant  of  their  intention  to  quit,  which  he  did.  No 
evidence  was  adduced  by  the  complainant  to  prove  the  accept- 
ance by  the  defendants  of  the  terms  of  his  alleged  proposal, 
or  to  show,  that  their  entry  into  possession  was  done  in  pur- 
suance of  this  arrangement,  if  proved,  or  in  part  performance 
thereof:] 

THE  CHANCELLOR : 

This,  therefore,  is  a  bill,  to  enforce  the  specific  performance 
of  a  parol  agreement  in  relation  to  lands  ;  and  the  complainant 
rests  his  right  to  a  decree  upon  the  ground  of  a  part  perform- 
ance of  the  agreement ;  and  there  can  be  no  doubt  that  if  he 
has  succeeded  in  proving  an  agreement ;  and  in  showing  it  to 
have  been  in  part  performed,  that  he  is  entitled  to  have  it 
specifically  executed.  Moale  vs.  Buchanan  et  al.  11  G.  'Sf  J., 
314. 

This  right  is  founded  not  upon  the  notion,  that  part  perform- 
ance is  a  compliance  with  the  statute  of  frauds;  but  upon  the 
ground,  that  such  part  performance,  takes  the  case  entirely  out 
of  the  statute.  The  part  performance  relied  upon  in  this  case, 
is  the  delivery  of  possession,  and  it  is  indispensable  that  such 
delivery  to,  and  taking  possession  by  the  defendant,  is  referrible 
to  the  contract  alleged  in  the  bill,  and  not  to  a  distinct,  or  dif- 
ferent title,  ib.  323. 


OWINGS  VS.  BALDWIN  AND  WHEELER.  123 

And,  it  is  not  only  necessary  to  take  a  case  out  of  the  stat- 
ute, that  the  acts  done  should  be  clear,  and  definite,  and  referri- 
ble  exclusively  to  the  contract  sought  to  be  enforced,  but  the 
contract  should  also  be  established,  by  competent  proofs,  to  be 
clear,  definite,  and  unequivocal  in  all  its  terras.  If,  says  Mr. 
Justice  Story,  "the  terms  are  uncertain,  or  ambiguous,  or  not 
made  out  by  satisfactory  proofs,  a  specific  performance  will  not 
(as  indeed  upon  principle  it  should  not)  be  decreed."  For, 
as  observed  by  the  same  judge,  "one  of  the  most  important 
objects  of  the  statute,  was,  to  prevent  the  introduction  of  loose 
and  indeterminate  proofs,  of  what  ought  to  be,  solemn  con- 
tracts." 2  Story's  Equity,  sec.  764. 

It  was  said  by  Chancellor  Kent,  in  the  case  of  Phillips  vs. 
Thompson,  1  Johns.  Ch.  Rep.,  131,  that,  to  entitle  a  party  to 
take  a  case  out  of  the  statute,  on  the  ground  of  part  perform- 
ance of  the  contract,  he  must  make  out  by  clear  and  satisfac- 
tory proof,  the  existence  of  the  contract  as  laid  in  the  bill,  and 
the  act  of  part  performance,  must  be  of  the  identical  contract 
set  up  by  him.  It  is  not  enough,  that  the  act  is  evidence  of 
some  agreement,  but  it  must  be  unequivocal  and  satisfactory 
evidence  of  the  particular  agreement  charged  in  the  bill.  The 
act  must  be  such  as  the  party  would  not  have  done,  unless  on 
account  of  that  very  agreement,  and  with  a  direct  view  to  its 
performance.  There  must  be  no  equivocation  and  uncertainty 
in  the  case. 

In  the  subsequent  case  of  Parkhurst  vs.  Van  Cortlandt, 
same  volume,  page  284,  the  Chancellor  remarked,  that  the 
doctrine  of  Phillips  vs.  Thompson,  was  undoubtedly  the  sound 
doctrine,  though  there  may  be  occasionally  a  case,  or  dictum, 
which  seems  to  impair  it,  and  that  the  tendency  of  the  latter 
cases,  is  to  prefer  giving  the  party  compensation  in  damages, 
instead  of  a  specific  performance. 

In  this  case,  the  bill  alleges,  that  the  possession  was  given, 
and  taken,  in  part  execution  of  the  agreement ;  but  the  answer 
explicitly  denies  this,  and  states,  that  the  possession  so  deliver- 
ed, and  received,  is  to  be  referred  to  an  entirely  different  agree- 
ment. The  question,  therefore,  is,  has  the  complainant  sue- 


124  HIGH   COURT  OF   CHANCERY. 

ceeded  in  proving,  by  clear  and  satisfactory  evidence,  not  only 
the  existence  of  the  contract,  as  laid  in  his  bill,  but  has  he 
shown  a  part  performance  of  that  identical  agreement  ?  It 
would  seem  to  be  clear  in  this  case,  that  the  contract  of  sale 
about  which  these  parties  were  negotiating,  was  not  intended 
to  rest  in  parol.  It  was  designed  to  have  been  reduced  to 
writing,  as  is  shown  by  the  two  papers  exhibited  with  the  bill 
and  answer ;  and  it  is  not  easy  to  understand,  if  the  terms 
were  all  adjusted,  and  no  impediment  existed  to  the  complete 
consummation  of  the  contract,  why  it  was  not  in  fact  reduced 
to  writing. 

The -Chancellor  after  alluding  to  the  denial  by  the  defend- 
ants, as  above  stated,  of  their  alleged  acceptance  of  the  terms 
of  the  agreement  as  reduced  to  writing,  by  the  complainant, 
and  to  the  above  account  of  the  transaction,  as  given  by  them, 
said  :  now,  unless  this  is  true,  or  unless  some  difficulty  existed 
to  the  consummation  of  the  agreement,  it  is  not  easy  to  imagine 
a  plausible  reason,  for  the  failure  of  the  parties  to  put  their  con- 
tract in  the  form  which  the  statute  requires.  An'd  apart  from 
the  inference  thus  arising  against  the  completion  of  the  con- 
tract, he  said  he  thought  there  was  a  want  of  such  clear  evi- 
dence of  its  terms,  and  of  the  act  of  part  performance,  as  would 
alone  justify  the  court  in  decreeing  a  specific  execution. 

The  contract  to  be  proved,  said  he,  must  be  the  identical 
contract  charged  in  the  bill,  and  this  must  be  the  same  with 
the  one  partly  performed ;  and  as  Chancellor  Kent  says,  there 
must  be  no  equivocation  or  uncertainty  in  the  case  ;  the 
plaintiff  cannot  get  the  relief  which  he  asks  for,  unless  he  has 
clearly  established  the  contract  as  charged,  and  also  a  part  per- 
formance of  the  same  contract. 

The  bill  in  this  case,  charges  a  particular  agreement,  the 
terms  of  which  were  reduced  to  writing,  and  though  not 
signed  by,  were,  as  alleged,  exhibited  to,  and  approved  by  the 
defendants.  And  it  also  charges  a  part  performance  of  this 
agreement.  The  answer  positively  denies  both  the  agreement 
and  the  act  of  part  performance,  and  exhibits  another  paper, 
varying  in  some  respects  from  the  paper  filed  by  the  complain- 


OWINGS  VS.  BALDWIN  AND  WHEELER.  125 

ant,  which  they  say,  correctly  sets  forth  the  terms  upon  which 
they  were  willing  to  purchase,  when  the  title  could  be  rendered 
unexceptionable.  Now,  if  a  contract  of  purchase,  was  in  fact 
made,  it  is  impossible  to  determine  from  the  evidence,  what  the 
terms  were  ?  Did  the  parties  agree  upon  the  terms  of  the  pa- 
per exhibited  by  the  plaintiff,  or  by  the  defendants  ?  Is  there 
in  truth,  a  single  witness,  who  undertakes  to  prove  all  the 
terras  of  the  alleged  contract  ?  Some  of  them  certainly  do 
speak  of  particular  terms,  but  upon  a  careful  examination  of 
the  depositions,  I  do  not  find  a  single  witness  who  professes 
to  know  all  the  terms,  and  stipulations  of  the  agreement ;  and, 
especially,  there  is  no  witness  who  has  undertaken  to  prove 
the  identical  agreement  charged  in  the  bill.  There  can  be  no 
doubt,  that,  the  plaintiff  has  succeeded  in  proving  some  agree- 
ment ;  and  indeed,  the  answer  admits,  that  some  agreement 
was  made.  But  this,  Chancellor  Kent  says,  is  not  sufficient ; 
the  particular  agreement  charged  must  be  proved,  as  must  the 
part  performance  of  the  same  agreement,  or  the  statute  will  be 
a  bar.  • 

And  the  plaintiff,  has  not  only,  as  I  think,  failed  in  proving 
the  agreement  laid  in  his  bill,  but  he  has  also  failed  in  his  proof 
of  the  act  of  part  performance. 

The  bill  alleges,  that  possession  was  delivered  by  plaintiff, 
and  received  by  the  defendants,  according  to  the  form  and  effect 
of  the  agreement,  as  charged.  This  averment  is  likewise  flatly 
denied,  and  the  possession  which  the  defendants  admit  they 
took,  is  referred  to  a  totally  different  agreement.  The  burden 
of  proof  in  regard  to  the  alleged  act  of  part  performance  of  the 
contract,  as  well  as  of  its  alleged  existence,  is  of  course  upon 
the  plaintiff,  and  the  weight  of  the  burden  is  most  essentially  in- 
creased by  the  positive  denials  of  the  answer,  in  direct  response 
to  the  bill.  Has  the  plaintiff  been  sucessful  in  proving  such  an 
act  of  part  performance  of  the  contract,  as  he  has  stated  in  his 
bill  ?  An  act,*in  the  language  of  Lord  Hardwicke,  "as  could  be 
done  with  no  other  view,  or  design,  than  to  perform  the  agree- 
ment;" and  "with  a  direct  view  to  its  performance?"  I  think  not. 
There  is  not  a  single  witness  who  speaks  of  the  terms  upon 
11* 


126  HIGH  COURT  OF  CHANCERY. 

which  the  possession,  (the  act  of  performance  relied  upon,) 
was  taken,  or  who  can,  or  does,  undertake  to  say,  that  it  was 
taken  in  part  performance  of  the  agreement,  which  the  plaintiff 
has  charged  in  his  bill.  The  answer,  therefore,  is  uncontra- 
dicted  upon  this  point  by  the  evidence. 

The  Chancellor  then  referred  to  the  extracts,  from  the  testi- 
mony of  H.  N.  Gambrill,  arid  Neilson  Poe,  inserted  above,  to 
show  that  the  possession  was  neither  delivered,  or  received,  in 
part  performance  of  this  contract ;  and  in  relation  thereto,  said  : 
It  seems  to  me,  therefore,  perfectly  obvious,  that  the  act  relied 
upon  here  as  a  part  performance  of  the  contract  charged  in  the 
bill,  is  not  an  act  "unequivocally  referring  to,  and  resulting 
from  that  agreement,"  but  is  an  act  which  it  is  apparent  from 
the  evidence,  must  be  referred  to  a  different  agreement,  and 
consequently  it  will  not  take  the  case  out  of  the  statute  of 
frauds. 

The  Chancellor  said,  that  insomuch  as  the  plaintiff  had  not, 
as  he  thought,  succeeded  in  proving  the  contract  stated  in  his 
bill ;  or  an  act,  in  part  performance  of  that  particular  contract ; 
he  deemed  it  unnecessary  to  consider  the  question,  whether  the 
title  was  such  an  one  as  would  be  forced  upon  a  purchaser. 
With  regard  to  the  rent,  which  by  the  statement  in  the  answer 
the  defendants  were  to  have  paid,  he  said,  the  complainant 
was  not  even  entitled  to  a  decree  to  that  extent,  first,  because 
he  makes  no  such  claim  in  his  bill — and  secondly,  because  he 
has  adequate  remedy  at  law  in  an  action  for  use  and  occupa- 
tion. 

[This  case  was  affirmed  on  appeal.] 


DOUB  VS.   BARNES.  127 

JOHN  DOUB 

f 

DECEMBER  TERM,  1847. 


ABRAHAM   BARNES  ET  AL 

[EQUITY — WAIVER   OF   JUDGMENT   LIENS — EVIDENCE — MULTIFARIOUSNESS — 
USURY PRACTICE.] 

THE  defendants  conveyed,  by  deed,  a  large  amount  of  real  and  personal  prop- 
erty, to  trustees,  in  trust,  to  sell  the  same,  and  out  of  the  proceeds  to  pay  the 
claims  of  their  creditors,  without  priority  or  preference,  except  as  the  same 
might  exist  by  law.  The  trustees,  in  execution  of  their  trust,  sold  parcels 
thereof  to  the  complainant  and  others.  At  the  time  this  deed  was  executed, 
there  were  unsatisfied  judgments,  to  a  large  amount,  against  the  grantors,  upon 
some  of  which,  writs  of  scire  facias  were  issued,  and  fiats  rendered  against  the 
original  defendants  in  the  judgments,  and  the  terretewnts,  the  purchasers  from 
the  trustees,  and  upon  these  fiats  writs  of  fieri  facias  were  issued  and  laid  upon 
the  lands  purchased  by  the  complainant.  Upon  a  bill  to  restrain  proceedings 
upon  these  executions,  it  was  HELD — 

That  if  the  judgment  creditors  assented  to  the  deed  of  trust,  and  by  their  con- 
duct induced  the  complainant  and  others  to  become  the  purchasers  of  the 
land  bound  by  their  judgments,  and  to  believe  that  they  would  look  to  the 
trustees  for  the  .payment  of  their  claims,  and  not  to  their  judgment  liens, 
such  conduct  would  furnish  a  valid  equitable  defence. 

To  allow  the  judgment  creditors,  after  such  a  course  of  conduct,  to  enforce 
their  judgments  against  the  purchasers,  would  be  to  permit  them  to  perpe- 
trate a  fraud  upon  the  latter.  Upon  such  a  state  of  facts,  the  purchasers 
would  not  be  bound  to  see  to  the  application  of  the  purchase  money. 

A  defence,  founded  on  such  circumstances,  can  only  be  rendered  available  in  a 
court  of  equity,  on  the  ground  of  fraud. 

An  injunction  can  only  be  dissolved  by  positive  contradictory  averments  in  the  / 
answer  ;  and,  an  answer  founded  upon  hearsay  is  not  sufficient  to  remove  the! 
complainant's  equity,  though  resting  upon  information  derived  from  others,  \ 
it  denies  the  facts  out  of  which  that  equity  arose. 

Upon  motion  to  dissolve,  credit  can  only  be  given  to  the  answer,  in  so  far  as  it  / 
speaks  of  responsive  matters,  within  the  personal  knowledge  of  the  defend-' 
ant,  and  unless,  so  speaking,  the  equity  of  the  bill  is  sworn  away,  the  injun 
tion  cannot  be  dissolved. 

Although  an  answer,  founded  upon  hearsay,  is  not  to  be  treated  as  an  answer' 
resting  upon  personal  knowledge,  it  is  sufficient  to  put  the  complainant  uponV 
the  proof  of  the  averments  of  his  bill. 

An  attorney  either  in  law  or  in  fact,  would  not  have  the  power  to  bind  his  priii- " 
cipal  by  an  agreement  to  surrender  his   lien  upon  the  land,  and  to  look  ex- 
clusively to  the  trustees,  without  an  express  authority  for  that  purpose. 

Where  a  party  executing  a  deed  made' a  formal  proposition  to  his  creditors,  in 
writing,  which,  some  accepting,  the  trust  was  created,  and  upon  a  dividend 
being  made,  a  creditor  received  from  the  trustees  an  equal  share  with  the 


(> 

1 


128  HIGH  COURT  OF  CHANCERY. 

rest — such  creditor  must  be  considered  as  affirming  the  deed,  and,  of  course* 
bound  by  it. 

But  where  a  deed,  in  which  all  legal  priorities  were  preserved,  was  executed, 
without  any  proposition  made  to  creditors,  or  any  previous  consultation  or 
agreement  with  them,  a  creditor,  by  receiving  money  from  the  trustees  in 
part  payment  of  his  judgment,  does  not  thereby  render  the  provisions  of  the 
deed  binding  upon  him,  nor  waive  the  lien  of  his  judgment. 

A  party  who  has  assigned  a  judgment,  without  recourse,  except  as  to  his  right 
to  assign  and  transfer  the  same,  is  a  competent  witness  for  the  assignee,  in  a 
suit  to  enforce  the  judgment ;  the  warranty  extending  only  to  the  right  to 
make  the  assignment. 

Where  an  original  and  amended  bill  merely  unite  two  cases  of  complaint  grow- 
ing out  of  the  same  transaction,  affecting  ^he  same  question  of  right,  being 
the  right  of  the  complainant  to  relief  against  the  judgment  of  the  defendant, 
they  cannot  be  regarded  as  obnoxious  to  the  objection  of  multifariousness. 

A  party  who  has  paid  a  judgment,  founded  on  a  usurious  debt,  may  ask  to  be 
relieved  as  to  the  amount  paid  beyond  what  was  legally  due  and  recoverable ; 
and  this  may  be  done  without  paying  or  offering  to  pay  any  thing,  because 
the  application  for  relief  is  predicated  upon  the  averment,  that  too  much  has 
been  already  paid. 

A  purchaser  from  the  mortgagor  may  avail  himself  of  the  defence  of  usury,  to 
defeat  the  action  of  the  assignee  of  the  mortgagee. 

If  the  assignors,  in  this  case,  might  require  the  defendant  to  repay  the  excess 
which  he  may  have  received  over  hisYlebt  and  legal  interest,  the  assignee,  the 
complainant,  who  claims  under  and  through  them,  may  do  so  likewise. 

[On  the  llth  of  October,  1839,  Abraham  Barnes,  being  in- 
debted in  various  sums  of  money,  and  Melchior  B.  Mason  and 
John  Thompson  Mason,  being  bound  with  him  for  a  portion  of 
his  debts,  they  conveyed,  by  deed  of  that  date,  a  large  amount 
of  real  and  personal  estate  to  William  Price  and  David  G. 
Yost,  in  trust,  out  of  the  proceeds  and  avails  thereof,  to  dis- 
charge the  claims  of  their  creditors,  without  priority  or  prefer- 
ence, except  as  the  same  might  exist  by  law.  The  trustees,  in 
execution  of  their  trust,  proceeded  to  sell  parcels  of  said  trust 
estate  to  divers  persons,  and  among  others  to  Doub,  the  com- 
plainant, to  whom  they  sold,  on  the  25th  of  March,  1840,  a 
portion  of  the  estate  of  John  Thompson  Mason,  conveyed  to 
them  as  aforesaid,  for  a  sum  exceeding  $12,000,  and  on  the 
21st  of  October,  1843,  another  portion  of  the  same  for  upwards 
of  $900. 

At  the  time  the  deed  of  trust  was  executed,  there  was  a  large 
amount  of  unsatisfied  judgments  against  Barnes  individually  ? 


DOUB  VS.  BARNES.  129 

and  also  against  him  and  the  Masons  collectively ;  and  in  the 
year  1844,  a  number  of  them  being  still  unpaid,  writs  of  scire 
facias^  were  issued  upon  them,  against  the  original  defendants 
and  the  terretenants,  and  at  March  term,  1845,  of  Washington 
County  Court,  fiats  were  entered  upon  them.  A  number  of 
these  judgments  were  subsequently  entered  for  the  use  of  Mar- 
garet A.  Mason,  with  whose  separate  trust  estate  they  had  been 
purchased,  by  her  husband  and  trustee,  John  Thompson  Mason, 
and  upon  ihejiats  thus  rendered,  and  marked  for  her  use,  writs 
of  fieri  facias  were  issued  to  March  term,  1846,  of  Washington 
County  Court,  and  laid  upon  the  land  purchased  by  Doub,  as 
above  mentioned,  from  said  Price  and  Yost. 

The  principal  object  of  this  bill  was  to  prohibit  proceedings 
on  these  executions,  and  an  injunction  for  that  purpose  was 
granted  by  the  late  Chancellor  on  the  day  the  bill  was  filed. 
This  injunction  was  afterwards  upon  hearing,  dissolved,  and 
on  an  appeal  taken,  the  order  of  dissolution  was,  at  the  June 
term,  1846,  of  the  Court  of  Appeals,  affirmed  as  to  Lynch  and 
Craft,  two  of  the  judgment  creditors,  but  reversed  as  to  John 
Thompson  Mason  and  wife,  and  the  cause  was  remanded  to  this 
court  for  further  proceedings.  An  order  reinstating  it  having 
been  passed,  and  proof  taken,  the  cause  was  argued  by  coun- 
sel and  submitted  to  the  Chancellor,  for  his  decision. 

The  other  facts  in  this  case,  as  elicited  by  the  pleadings  and 
substantiated  by  the  evidence,  their  effect  upon  the  merits  of 
the  questions  raised,  and  what  those  questions  were,  will  ap- 
pear from  the  opinion  of  the  Chancellor,  who,  after  stating  the 
nature  of  the  case,  proceeded  as  follows  :] 

THE  CHANCELLOR  : 

The  Court  of  Appeals  in  their  opinion  upon  the  question  be- 
fore them,  make  a  statement  of  the  equity  of  the  complainant's 
bill,  and  the  judgment  of  this  court  upon  the  matters  now  to  be 
decided,  must  turn  upon  the  conformity  of  the  proof  with  the 
facts  set  forth  in  the  bill,  upon  the  existence  of  which,  in  the 
view  of  the  appellate  court,  the  complainant's  right  to  relief 
depends. 


130  HIGH  COURT  OP  CHANCERY. 

Such  must  certainly  be  the  case  with  regard  to  all  the  ques- 
tions settled  upon  the  former  appeal. 

The  facts  alleged,  then,  which  constitute  the  complainant's 
equity,  are,  1st,  That  after  the  judgments  were  rendered  against 
Barnes  and  the  two  Masons,  they  executed  a  conveyance  to  the 
trustees,  Yost  and  Price,  on  the  llth  of  October,  1839,  of  all  their 
real  estate  in  Washington  county,  and  a  large  personal  estate, 
in  trust,  to  pay  their  debts  according  to  their  legal  priority — the 
said  trustees  being  the  attorneys  of  the  judgment  creditors. 
2d,  That  the  existence  of  said  deed  was  made  known  to  said 
judgment  creditors  shortly  after  its  execution,  and  that  they 
acquiesced  in  the  assumption  by  the  trustees  of  control  over  the 
property  conveyed,  and   suspended  all  proceedings  upon  their 
judgments.     3d,  That  by  acts  indicative  of  their  intention  to 
look  for  payment  of  their  claims  to  the  proceeds  of  sales  which 
should  be  made  by  the  trustees,  they  gave  credit  to  them,  and 
enabled  them  to  make  more  advantageous  sales  for  the  cred- 
itors than  could  otherwise  be  effected.     4th,  That  the  com- 
plainant was  persuaded  to  make  payment,  from  a  belief,  well 
founded  in  the  conduct  of  the  creditors,  that  they  would  look 
to  the  trustees,  and  only  to  the  trustees,  for  payment  of  their 
claims  out  of  the  proceeds  of  the  sales  to  be  made  by  them. 
The  court,  after  thus  stating  the  equity  of  the  bill,  proceed  to 
show  what  sort  of  a  case  the  plaintiff  must  prove,  to  entitle  him 
to  relief;  and  in  doing  so,  say  that,  "if  the  judgment  creditors 
assented  to  the  deed  of  trust,  and  by  their  conduct  induced  the 
complainant,  and  others,  to  become  the  purchasers  of  the  land 
bound  by  their  judgments,  and  to  believe  that  they  would  look  to 
the  trustees  for  the  payment  of  their  claims,  and  not  to  the  liens 
created  by  their  judgments,  that  such  conduct  would  furnish  a 
valid  equitable  defence.     To  allow  the  judgment  creditors,  after 
such  a  course  of  conduct  to  enforce  their  judgments  against  the 
purchasers,  would  be  to  permit  them  to  perpetrate  a  fraud  upon 
the  purchasers.     The  obvious  consequence  of  such  a  procedure 
on  the  part  of  the  judgment  creditors,  would  be  to  lull  the  pur- 
chasers into  a  false  security,  and  to  induce  them  to  believe  that 
a  title  would  follow  the  payment  of  the  purchase  money.     Upon 


DOUB  VS.  BARNES.  131 

the  state  of  facts  alleged,  it  would  not  be  necessary  for  the  pur- 
chasers to  see  to  the  application  of  the  purchase  money  ;  credit 
being  given  to  the  trustees,  and  they  being  known  to  be  alone 
looked  to  for  the  payment  of  the  judgments  by  the  proceeds  of 
sale."  And  the  court  go  on  to  say,  that  a  defence,  founded 
upon  the  circumstances  stated,  could  only  be  made  available  in 
a  court  of  equity  upon  the  ground  of  fraud. 

[Passing  over  the  judgments  of  Lynch  and  Craft — the  Court 
of  Appeals  having  decided  in  their  favor — the  Chancellor  con- 
tinued:] 

The  attention  of  the  court  is  now  confined  to  the  judgments 
which  have  been  assigned  to,  and  marked  for  the  use  of  Mar- 
garet A.  Mason,  short  copies  of  which  »are  to  be  found  in  the 
complainant's  exhibit  C,  filed  with  his  bill ;  and  the  question 
is,  whether  these  judgment  creditors,  the  parties  who  assigned 
to  her,  did  assent  to  the  deed  of  trust  to  Price  and  Yost,  and 
by  their  conduct  induce  the  complainant  and  others  to  become 
purchasers  of  the  lands  bound  by  the  judgments,  and  to  believe 
that  they  would  look  to  the  trustees  for  the  payment  of  their 
claims,  and  not  to  the  liens  created  by  them  ? 

In  other  words,  that  these  judgment  creditors,  knowing  and 
assenting  to  the  terras  of  the  deed,  were  willing  to  abandon 
wholly  their  liens  on  the  lands  conveyed  by  it,  and  to  look  ex- 
clusively to  the  trustees ;  and  by  their  conduct,  indicative  of 
such  willingness,  the  complainant  and  others  were  induced  to 
purchase. 

This,  the  Court  of  Appeals  say,  would  constitute  an  equita- 
ble defence  against  the  judgments  ;  as  to  permit  them  to  bA 
enforced  under  such  circumstances  would  be  to  tolerate  the  per- » | 
petration  of  a  fraud  against  the  purchasers.  Upon  the  bill 
which  made  this  case,  the  complainant  displayed  an  equity 
which  entitled  him  to  an  injunction,  which  could  only  be  dis- 
solved by  positive  contradictory  averments  in  the  answer  ;  and 
as  the  answer  of  John  Thompson  Mason  was  founded  upon 
hearsay,  and  not  personal  knowledge,  it  was  not  regarded  as 
sufficient  to  remove  the  complainant's  equity ;  though,  resting 
upon  information  derived  from  others,  it  contained  denials  of 


132  HIGH   COURT  OF  CHANCERY. 

the  facts  out  of  which  the  equity  arose.  Upon  the  motion  to 
dissolve,  credit  could  only  be  given  to  the  answer  in  so  far  as 
it  spoke  of  responsive  matters,  within  the  personal  knowledge 
of  the  defendant ;  and  unless  so  speaking,  the  equity  of  the  bill 
was  sworn  away,  the  injunction  could  not  be  dissolved. 

But  the  case  is  now  before  this  court  for  final  hearing,  upon 
bill,  answer  and  evidence ;  and,  although  an  answer  founded 
upon  hearsay,  though  denying  the  complainant's  equity,  is  not 
to  be  treated  as  an  answer  resting  upon  personal  knowledge,  it 
is  certainly  sufficient  to  put  the  complainant  upon  the  proof  of 
the  averments  of  his  bill.  And  the  question,  therefore,  is,  has 
he  succeeded  in  establishing  by  evidence  those  averments,  upon 
which  his  title  to  the  aid  of  this  court  depends. 

With  respect  to  the  judgment  at  the  suit  of  William  McKim, 
it  is  admitted  by  the  solicitor  of  the  complainant,  that  he  has 
made  no  defence,  and  therefore  as  to  that,  the  injunction  must 
be  dissolved. 

And  with  regard  to  the  judgment  at  suit  of  Brooks  and  Hotch- 
kiss,  the  only  attempt  to  make  out  an  equity  against  it,  is  the 
production  of  a  receipt  signed  by  D.  G.  Yost  as  their  attorney, 
to  the  trustees  for  $200,  in  part  payment  of  the  judgment,  on 
the  8th  of  July,  1840.  This  receipt  of  a  part  of  the  money  from 
the  trustees,  and  the  delay  and  forbearance  to  enforce  payment 
of  the  residue,  is  thought  to  afford  a  sufficient  foundation  for 
interfering,  as  against  these  parties,  all  those  circumstances 
which,  in  the  opinion  of  the  Court  of  Appeals,  would  make  it 
fraudulent  to  allow  them  now  to  proceed  to  enforce  their  liens 
against  the  land.  I  am  not  prepared  to  concur  in  this  reason- 
ing, and  therefore  as  to  this  judgment,  also,  the  injunction  must 
be  dissolved. 

The  argument  before  me  was  principally  directed  against  the 
Judgments  at  suit  of  John  Trimble  and  John  W.  Brown,  which 
appear  to  have  been  assigned,  in  the  first  place,  to  the  Bank  of 
Baltimore,  and  afterwards  by  the  bank  to  Mrs.  Mason,  and  the 
judgments  at  suit  of  Henry  Tiffany,  and  William  Tiffany  and 
others ;  which  were  by  them  also  assigned  to  her. 

With  reference  to  the  judgments  at   suit  of  Trimble   and 


DOUB  VS.  BARNES.  133 

Brown,  which  passed  to  Mrs.  Mason,  through  the  Bank  of 
Baltimore,  much  reliance  is  placed  by  the  complainant's  solic- 
itor, in  his  effort  to  show  that  to  let  them  loose  against  the  land 
purchased  by  him,  would  be  to  enable  the  holder  of  them  to 
perpetrate  a  fraud — upon  a  correspondence  between  John  M. 
Gordon  of  Baltimore,  and  Yost,  one  of  the  trustees — he, 
Yost,  being  also  the  attorney  of  some  of  the  judgment  cred- 
itors. 

Mr.  Gordon  was  not  an  officer  of  the  bank,  but  a  practicing 
lawyer  in  the  city  of  Baltimore,  though  not  an  attorney  of 
Washington  County  C  ourt,  in  which  the  judgments  were  ren- 
dered. The  correspondence  between  him  and  Mr.  Yost  covers 
a  period  from  the  fall  of  1840  to  1844,  and  after  a  careful  read- 
ing of  it,  and  an  attentive  consideration  of  the  argument  of  the 
complainant's  counsel,  founded  upon  it,  I  am  unable  to  deduce 
from  it  the  conclusion,  without  which  the  assignee  cannot  be 
denied  the  benefit  of  her  judgments. 

Mr.  Gordon,  it  will  be  observed,  was  not  an  officer  of  the 
bank.  He  was  its  attorney,  either  at  law,  or  in  fact,  and  in 
neither  capacity  can  it  be  successfully  maintained,  he  would 
have  the  power  to  bind  his  principal  by  an  agreement  to  sur- 
render its  lien  upon  the  land,  and  look  exclusively  to  the  trus- 
tees, without  an  authority  for  that  purpose.  The  opinion  of 
the  Court  of  Appeals  in  this  case,  with  reference  to  the 
judgments  of  Lynch  and  Craft,  is  conclusive  upon  this  ques- 
tion. 

That  Mr.  Gordon  was  not  authorized  to  agree  to  the  pro- 
visions of  this  deed,  and  did  not  in  fact  so  agree ;  nay,  that  he 
never  saw  it,  nor  was  requested  to  give  his  consent  to  it  as  the 
attorney  of,  or  on  behalf  of  the  bank  ;  and  that  he  always  look- 
ed to  the  payment  of  the  judgments  in  the  order  of  their 
priority,  and  as  liens  on  the  property  ;  is  expressly  stated  by 
him  in  answer  to  the  first  cross  interrogatory  on  the  part  of  the 
defendant.  An  answer  which  the  Chancellor  thinks  not  at  all 
inconsistent  with  the  \vhole  scope  and  tenor  of  the  correspond- 
ence, and  quite  in  harmony  with  the  answer  of  the  same 
witness  to  the  complainant's  second  interrogatory  in  chief. 
12 


134  HIGH  COURT  OF  CHANCERY. 

It  is,  therefore,  thought,  if  this  case  was  before  a  jury  upon 
all  the  evidence,  the  inference  that  Gordon,  with  the  authority 
of  the  bank,  assented  to  the  provisions  of  this  deed,  and  agreed 
to  give  up  the  liens  of  the  judgments,  and  look  alone  to  the 
trustees  for  the  payment  of  the  money,  could  not  be  made. 

Neither  can  it  be  said,  I  think,  that  there  was  anything  in 
the  conduct  of  the  bank,  or  of  Mr.  Gordon,  in  this  correspond- 
ence, even  assuming,  in  opposition  to  his  evidence,  that  every 
letter  from  him  was  written  under  special  directions  from  the 
former,  which  could  have  induced  the  complainant  and  others 
to  become  purchasers  of  the  land,  and  to  believe  that  recourse 
would  only  be  had  to  the  trustees  for  the  payment  of  the 
money  ;  the  liens  created  by  the  judgment  being  altogether 
abandoned. 

So  far  as  the  complainant  himself  is  concerned,  the  principal 
purchase  made  by  him  was  anterior  to  the  commencement  of 
the  correspondence,  and  only  a  little  more  than  five  months 
from  the  date  of  the  deed.  With  respect  to  that  purchase, 
therefore,  it  seems  impossible  to  say  that  he  was  influenced  by 
the  correspondence.  And  with  regard  to  the  last  purchase,  in 
October,  1843,  there  is  no  evidence  that  he  ever  saw  the  cor- 
respondence. Indeed,  a  portion  of  it,  and  some  of  the  letters 
now  mainly  relied  upon  by  the  complainant,  bear  date  after  the 
purchase  was  made.  Besides,  as  with  regard  to  some  of  the 
judgment  creditors,  Lynch  and  Craft,  and  McKim,  for  exam- 
ple— it  is  not  pretended  that  anything  was  said  or  done  by 
them  to  induce  the  complainant  and  others  to  purchase,  or  to 
lull  them  into  a  false  security,  there  is  no  very  good  reason  to 
believe  that  the  purchasers  looked  to  the  conduct  of  the  judg- 
ment creditors  at  all ;  but,  that  they  were  governed  by  their 
confidence  in  the  integrity  and  legal  capacity  of  the  trustees, 
duly  to  fulfil  the  trusts  confided  to  them  by  the  deed.  If  the 
purchasers,  not  relying  upon  this  confidence,  but  adopting  the 
precaution  of  ascertaining  the  assent  of  the  judgment  creditors 
to  the  provisions  of  the  deed,  and  their  willingness  to  abandon 
their  liens,  would  not  buy  without  such  assent,  it  is  not  very 
probable  that  the  objection  would  have  been  removed  unless 


DOUB  VS.  BARNES.  135 

all  the  creditors  would  come  into  the  arrangement.  And  the 
circumstance  that  a  portion  of  the  creditors  did  not  so  assent, 
is  evidence  that  the  purchasers  bought  upon  their  faith  in  the 
ability  of  the  trustees  to  assure  them  good  titles,  without  the 
assent  of  the  judgment  creditors.  For  it  is  not  to  be  sup- 
posed, if  they  required  the  assent  of  some,  that  they  would 
have  been  satisfied  with  anything  short  of  the  assent  of  all ; 
and  the  assent  of  all  they  certainly  did  not  procure.  With  re- 
gard especially  to  the  complainant,  there  is,  independently  of 
inferential  reasoning,  strong  grounds  for  supposing  that  his 
confidence  in  Mr.  Yost,  one  of  the  trustees,  induced  him  to 
rely  exclusively  upon  his,  Yost's,  judgment,  in  regard  to  the 
title  ;  and  that  he  was  not  acting  upon  impressions  founded 
upon  the  acts  of  the  judgment  creditors. 

It  has  been  already  remarked,  that  the  principal  purchase 
made  by  the  complainant  was  only  a  few  months  after  the  date 
of  the  deed,  and,  therefore,  with  respect  to  that  purchase,  no 
inference  in  support  of  it  can  be  made  from  delay,  or  from  sus- 
pension of  proceedings  on  the  part  of  the  creditors  ;  though  it 
is  expressly  stated  by  the  Court  of  Appeals,  that  the  rights  of 
the  creditors  would  not  be  prejudiced  by  such  suspension,  if 
they  always  looked  to  their  judgments,  and  not  to  the  deed  of 
trust,  for  satisfaction  ;  and  the  evidence  of  Mr.  Gordon  is  ex- 
plicit, that  the  bank  never  was  asked  to  agree  to  the  provisions 
of  the  deed,  nor  never  gave  him  authority  to  do  so,  and  that  he 
always  looked  to  the  payment  of  the  judgments  in  the  order  of 
their  priority,  and  as  liens  on  the  property. 

I  am,  therefore,  of  opinion,  that  with  regard  to  the  judg- 
ments to  which  Mrs.  Mason  has  acquired  title  from  the  Bank 
of  Baltimore,  the  complainant  has  not  succeeded  in  establish- 
ing the  facts  which,  according  to  the  opinion  of  the  Court  of 
Appeals,  would  entitle  him  to  relief  against  them  by  injunc- 
tion. 

The  next  inquiry  relates  to  the  judgments  at  suit  of  Henry 
Tiffany,  and  William  Tiffany  and  others,  which  were  also  as- 
signed to  Mrs.  Mason. 

It  appears,  that  on  the  8th  of  July,  1840,  receipts  were  given 


136  HIGH  COURT  OF  CHANCERY. 

by  Mr.  Yost,  who  was  the  attorney  of  these  creditors,  for  sums 
of  money  stated  therein  to  have  been  received  by  him  from  the 
trustees  in  part  payment  of  these  judgments.  And  these  pay- 
ments, it  is  said,  have  the  effect  of  rendering  the  provisions  of 
the  deed  of  trust  binding  upon  the  creditors.  The  defendants, 
Mason  and  his  wife,  have  excepted  to  the  admissibility  of  these 
receipts,  and  it  is  by  no  means  clear,  that  the  exception  is  not 
well  taken.  But,  assuming  them  to  be  competent  evidence, 
upon  what  principle  is  it  that  they  shall  have  the  effect  of  de- 
priving the  creditors  of  the  lien  of  their  judgments  ?  It  does 
not  appear  in  the  first  place,  that  the  money  thus  receipted  for 
by  Yost,  ever  reached  the  hands  of  his  clients,  and  nearly 
five  years  afterwards,  vfhenjiats  were  rendered  on  writs  of  scire 
facias  upon  these  judgments,  no  credit  was  asked,  or  given  for 
these  payments.  And,  in  the  next  place,  if  the  money  was  paid 
over  by  Yost  to  his  clients,  there  is  certainly  no  evidence  to  show 
that  they  knew  that  it  arose  from  the  proceeds  of  sales  made  by 
the  trustees  under  the  deed,  which  was  only  executed  the  Oc- 
tober preceding  the  payment.  The  case  of  Moale  vs.  Buchanan 
et  al.,  11  Gill  fy  Johns.,  314,  is  relied  upon  to  show,  that  a  cred- 
itor who  accepts  a  payment  from  trustees,  must  be  considered 
a  party  to  the  deed  under  which  they  act,  and  of  course  bound 
by  it.  But  that  case  is  totally  unlike  the  present.  There,  the 
party  executing  the  deed  made  a  formal  proposition  to  his  cred- 
itors in  writing,  which  some  of  them  accepting,  the  trust  was 
created,  and  upon  a  dividend  being  made  by  the  trustees,  the 
creditor  in  question  received  an  equal  share  with  the  rest.  And 
upon  this  ground  the  Court  of  Appeals  said  he  must  be  con- 
sidered as  affirming  the  deed,  and  the  contract  upon  which  it 
was  executed.  But  here  the  deed  to  Price  and  Yost  was  ex- 
ecuted without  any  proposition  whatever  being  made  to  the 
creditors,  or  any  previous  consultation  or  agreement  with  them  ; 
and  by  which  all  legal  priorities  were  preserved  ;  and  the  trus- 
tees, consequently,  in  the  discharge  of  their  duty,  were  bound 
to  extinguish  the  liens  as  they  accrued.  No  dividends,  therefore, 
have  been  or  ought  to  have  been  struck  among  the  creditors, 
but  the  claim  of  each  paid  according  to  its  date.  If,  therefore, 


DOUB   VS.   BARNES.  137 

the  Messrs.  Tiffany  received  the  money  in  question  from  Yost, 
and  knew  that  it  was  received  by  him  from  the  trustees,  they 
would  have  had  a  right  to  regard  it  as  a  payment  growing  out 
of  their  relative  position  as  judgment  creditors,  and  not  on  ac- 
count of  any  advantage  secured  to  them  by  the  deed.  Their 
receipt,  therefore,  of  this  money,  if  they  did  receive  it,  with 
knowledge  of  the  source  from  whence  it  came,  (of  which  how- 
ever there  is  no  evidence,)  could  not  render  it  unconscientious 
in  them  now  to  insist  upon  the  enforcement  of  their  judgments, 
— as  the  Court  of  Appeals  say,  would  have  been  the  case,  if 
the  creditor  in  the  case  of  Moale  and  Buchanan  had  been  per- 
mitted to  proceed  upon  his  judgment,  after  receiving  dividends 
under  the  trust. 

I  do  not,  therefore,  think  that  an  equity  can  be  made  out 
against  these  judgments,  upon  the  footing  of  the  receipts  of 
Mr.  Yost,  either  taken  by  themselves,  or  together,  with  the  let- 
ters of  the  27th  of  April,  and  9th  of  June,  1843.  Looking  to 
the  dates  as  well  as  the  terms  of  those  letters,  I  find  it  impos- 
sible to  infer  from  them,  those  circumstances  which  the  Court 
of  Appeals  have  said  must  exist,  to  deprive  the  creditors  of 
the  rights  secured  them  by  their  judgments. 

But,  independently  of  all  this,  the  Messrs.  Tiffany  have  been 
examined  as  witnesses,  and  each  declared  that  they  did  not 
mean,  and  never  did  agree,  to  accept  the  provisions  of  the  deed, 
and  surrender  their  liens  as  judgment  creditors. 

It  is  true,  they  have  been  excepted  to  as  incompetent  wit- 
nesses, but  looking  to  the  terms  of  their  assignment  to  Mrs. 
Mason,  I  cannot  very  clearly  see  what  qualifying  interest  they 
have  in  the  event  of  the  present  controversy. 

The  assignment  is  without  recourse  to  them,  except  as  to 
their  rights  to  assign  and  transfer  the  judgments. 

Their  right  to  assign  the  judgments  is  one  thing,  but  the 
rights  which  the  assignee  may  assert  under  it  is  another ;  and, 
therefore,  it  by  no  means  follows,  that  the  assignors  would  be 
responsible  to  the  assignee  if  it  should  turn  out,  that  any  thing 
had  been  done  by  the  former,  prior  to  the  assignment,  which  de- 

12* 


138  HIGH  COURT  OF  CHANCERY. 

stroyed  the  lien  of  the  judgment,  and  restricted  the  remedy  of 
the  holder  of  it  to  a  claim  upon  the  trustees. 

Surely  the  right  to  assign  the  judgment,  for  which  right  alone 
the  assignors  were  to  be  responsible,  could  not  be  impaired  by 
their  agreement  (if  they  made  one)  to  be  bound  by  the  deed. 
The  only  breach  of  the  contract  on  the  part  of  the  assignors, 
would  be  the  want  of  a  title  to  assign,  and  as  it  seems  to  me, 
no  responsibility  can  attach  to  them  because  of  any  act  of 
theirs  by  which  the  remedies  for  the  enforcement  of  the  judg- 
ment may  be  curtailed. 

Before  they  could  be  held  liable  upon  this  assignment,  it  must 
be  shown  that  they  had  no  title  to  make  the  assignment  itself, 
and  not  that  the  judgment  has  been  shorn  of  some  of  its  attri- 
butes by  any  agreement  made  by  the  assignors. 

The  authority  to  assign  is  one  thing,  but  the  legal  effect  and 
operation  of  the  judgment,  when  assigned,  is  another  and  en- 
tirely different  thing.  It  might,  or  might  not,  continue  a  lien 
upon  the  lands  embraced  in  the  deeds,  but  the  waiver  of  the 
lien,  if  it  has  been  waived,  does  not  touch  the  right  of  the  as- 
signors to  make  the  assignment,  to  which  right  alone  can  the 
warranty  be  understood  as  extending ;  the  language  of  the  as- 
signment being,  "without  recourse  to  me,  except  as  to  my  right 
to  assign  and  transfer  said  judgment." 

If  this  be  so,  the  Messrs.  Tiffany  are  competent  witnesses ; 
and  looking  to  their  proof,  there  does  not  appear  to  be  any 
ground  upon  which  an  equity  against  these  judgments  can  be 
raised. 

But,  as  has  been  already  remarked,  even  if  the  depositions 
of  these  witnesses  are  excluded,  I  do  not  think  the  complain- 
ant has  succeeded  in  the  attempt  to  deprive  the  holder  of  these 
judgments  of  the  lien  created  by  them,  by  establishing  those 
facts  which,  according  to  the  opinion  of  the  Court  of  Appeals, 
are  required  to  be  shown  for  that  purpose,  and,  therefore,  as  to 
them,  also,  the  injunction  must  be  dissolved. 

Having  thus  disposed  of  the  case,  so  far  as  the  injunction  is 
concerned,  it  next  becomes  necessary  to  consider  the  questions 
in  controversy  between  the  complainant,  and  the  defendant 
John  Hanson  Thomas. 


DOUB  VS.   BARNES.  139 

• 

Mr.  Thomas  was  made  a  defendant  to  the  original  bill,  as 
one  of  the  purchasers  of  a  portion  of  the  land  from  the  trustees, 
for  which  it  was  alleged  he  paid  no  money,  the  same  being  al- 
lowed to  remain  in  his  hands,  under  an  impression  that  the  trust 
fund,  exclusive  of  the  purchase  made  by  Thomas,  would  be 
sufficient  to  discharge  all  the  judgments  of  elder  date  than  the 
one  which  had  been  recovered  by  Thomas  himself  against 
Barnes  and  the  Masons,  in  1839  ;  and  that,  consequently,  the 
consideration  of  the  land  purchased  by  Thomas  would  be  prop- 
erly applicable  to  the  payment  of  the  judgment  held  by  him. 
The  bill  alleged,  however,  that  this  impression  was  so  far  ground- 
less that  the  judgments  on  which  executions  had  been  issued 
and  been  levied  on  the  land,  purchased  by  the  complainant  of  the 
trustees,  were  elder  in  date  than  the  judgment  recovered  by 
Thomas,  and  that,  therefore,  equity  required  that  Thomas  should 
be  made  to  pay  the  purchase  money  due  from  him,  before  the 
complainant  should  be  called  on  a  second  time  to  pay  for  the 
land  which  he  had  purchased  ;  and  prayed  relief  accordingly. 

After  the  answer  of  Thomas  to  this  bill  was  filed,  the  com- 
plainant asked  and  obtained  leave  to  file  an  amended  bill,  in. 
which  he  alleged  that  the  judgment  recovered  by  Thomas  was 
founded  on  a  usurious  contract,  the  nature  of  which  is  set  forth 
in  the  bill  ;  insisting,  that  if  the  judgment  by  reason  of  the 
usury  is  not  to  be  regarded  as  absolutely  void,  it  should  only- 
stand  as  a  security  for  the  sum  actually  and  fairly  due  ;  and 
then  prays  for  a  discovery,  and  such  relief  as  the  case  may  re- 
quire. The  defendant  Thomas  demurred  to  this  bill,  1st  upon 
the  ground,  that  it  made  no  case  which  entitled  the  complainant 
to  a  discovery  from,  and  relief  against  the  defendant.  2nd, 
That  the  two  bills,  original  and  supplemental,  contained  multi- 
farious matters,  not  proper  to  be  blended  in  the  same  suit.  3rd, 
That  the  complainant  has  not  tendered,  or  offered  to  pay,  the 
amount  actually  due  the  defendant,  with  interest  thereon.  4th, 
That  the  complainant  has  shown  no  title  to  seek  a  discovery, 
or  obtain  relief.  And  5th,  That  if  the  defendant  is  answer- 
able to  any  one  touching  the  matters  in  the  bill,  the  complainant 
is  not  the  party  to  .whom  he  is  so  answerable. 


140  HIGH  COURT  OF  CHANCERY. 

* 

It  would  appear  from  a  paper  dated  the  23rd  of  February, 
1844,  and  filed  with  the  answer  of  Thomas  to  the  original  bill, 
that  he  knew  of  the  existence  of  judgments  of  elder  date  than 
his  own,  and  that  a  deficiency  of  the  trust  estate  was  a  possible, 
not  to  say  probable,  contingency;  and  it  is,  therefore,  very  ques- 
tionable, whether  he  can  be  permitted,  in  concert  with  the  trus- 
tees, to  secure  such  an  application  of  the  trust  estate  to  the 
payment  of  his  own  debt,  as  shall  disappoint  or  prejudice  prior 
incumbrancers.  But,  whether  this  be  so  or  not,  there  seems 
on  the  part  of  the  complainant,  who  paid  his  money  to  the 
trustees,  an  equity  superior  to  that  of  Thomas,  who  took  land 
in  satisfaction  of  a  junior,  when  elder  liens  remained  outstand- 
ing. If  this  arrangement  between  Thomas  and  the  trustees 
is  to  stand  to  the  prejudice  of  Doub,  the  complainant,  that  is,  if 
Thomas  shall  keep  all  he  has  received,  and  the  judgment  cred- 
itors are  thrown  upon  the  land  purchased  by  the  complainant, 
then  he  will  be  compelled  to  pay  for  his  land  a  second  time, 
while  Thomas  will  not  have  paid  once  for  his  ;  because,  upon 
the  hypothesis,  that  the  trust  fund  would  have  been  exhausted 
in  paying  judgments  prior  in  date  to  his,  the  judgment  held 
by  him  was  of  no  value. 

I  do  not  think  the  objection  upon  the  ground  of  multifarious- 
ness  is  well  taken. 

The  original  bill  sought  relief  against  Thomas  upon  the 
ground,  that  the  jndgment,  in  part  satisfaction  of  which  he  re- 
ceived the  land  from  the  trustees,  was  younger  than  those  for 
which  the  complainant's  land  was  about  to  be  sold  ;  and  there- 
fore, equity  required  that  he  (Thomas)  should  be  made  to  pay, 
before  the  complainant  should  be  compelled  to  pay  for  his  land 
a  second  time. 

That  bill  was  founded  upon  the  idea  that  this  defendant  had, 
by  arrangement  with  the  trustees,  secured  to  himself  an  advan- 
tage against  which  equity  would  relieve,  upon  the  application 
of  a  party  prejudiced.  The  amended  bill  proceeds  upon  the 
supposition,  that  the  same  judgment  (in  respect  of  which  the 
inequitable  advantage  charged  in  the  original  bill,  is  said  to 
have  been  secured)  is  tainted  with  usury,  and  upon  that  ground 
prays  for  relief  against  it. 


DOUB  VS.  BARNES.  141 

With  respect  to  this  transaction,  then,  bet  ween  the  defendant, 
Thomas,  and  the  trustees,  two  grounds  of  complaint  are  urged 
— that  is,  the  transaction  is  impeached  upon  two  grounds — 
one  of  which,  conceding  the  judgment  to  be  valid,  insists  that 
funds  have  been  applied  to  its  satisfaction  which  were  applica- 
ble to  the  payment  of  elder  liens.  Whilst  the  other  calls  in 
question  the  validity  of  the  judgment  itself,  because  the  debt, 
to  secure  which  it  was  rendered,  is  founded  upon  a  usurious 
contract.  The  bills,  therefore,  merely  unite  two  causes  of  com- 
plaint growing  out  of  the  same  transaction,  affecting  the  same 
question  of  right ;  being  the  right  of  the  complainant  to  relief 
against  the  judgment  of  the  defendant.  Such  a  bill  I  do  not 
regard  as  obnoxious  to  the  objection  of  multifariousness. 
Story's  Eg.  PL,  233,  section 284. 

The  next  ground  of  demurrer  is,  that  the  complainant  does 
not  by  his  bill,  tender,  or  offer  to  pay,  the  amount  of  the  debt 
actually  loaned,  with  the  interest  thereon. 

But,  in  this  case  the  allegation  is,  that  the  defendant  has 
already  received  more  than  the  amount  of  his  claim,  with  in- 
terest ;  and  that  at  all  events,  without  a  discovery  from  him  it 
is  impossible  to  determine  what  the  actual  amount  of  his  debt 
is  ;  and,  therefore,  to  say  that  the  complainant  shall  not  have  a 
discovery  as  to  the  usury,  without  paying,  or  offering  to  pay, 
the  principal  debt  and  legal  interest,  is  to  deny  relief  altogether. 
In  the  case  of  Jordan  vs.  Trumbo,  6  Gill  fy  Johns.,  106,  the 
Court  of  Appeals  say,  that  a  party  who  has  paid  a  judgment 
founded  on  a  usurious  debt,  may  asked  to  be  relieved,  "as  to 
the  amount  paid,  beyond  what  was  legally  due  and  recover- 
able," and  of  course  this  may  be  done  without  paying,  or  offer- 
ing to  pay  any  thing,  because  the  application  for  relief  is  predi- 
cated upon  the  averment,  that  too  much  has  been  already  paid. 

The  next  objection  is,  that  if  the  defendant  is  answerable  to 
any  one  touching  the  matters  contained  in  the  amended  bill,  he 
is  not  answerable  to  the  complainant. 

This  objection,  it  is  presumed,  proceeds  upon  the  ground, 
that  Barnes  and  the  Masons  alone  could  ask  to  be  relieved 
against  this  claim,  as  founded  upon  a  usurious  consideration. 


142  HIGH  COURT  OF  CHANCERY. 

The  complainant  is  the  assignee  of  these  parties,  and  the 
question  is,  whether,  occupying  that  position,  he  may  not  set 
up  usury  against  the  judgment  of  Thomas,  the  payment  of 
whose  claim  has  operated,  or  is  likely  to  operate,  to  his  preju- 
dice. 

In  the  case  of  D' Wolf  vs.  Johnson,  10  Wheat.,  369,  the  Su- 
preme Court  was  supposed  to  have  decided,  that  the  purchaser 
of  an  equity  of  redemption  could  not  show  usury  in  the  mort- 
gage, to  defeat  a  foreclosure  ;  but  the  case  of  Lloyd  vs.  Scott, 
4  Peters,  205,  shows  that  the  point  was  not  involved  in  D'Wolf 
vs.  Johnson,  and  the  case  reported  in  Peters  proves  that  a  pur- 
chaser from  the  mortgagor  may  avail  himself  of  the  defence  of 
usury,  to  defeat  the  action  of  the  assignee  of  the  mortgagee. 
The  right  of  the  alienee  of  the  mortgagor  to  avail  himself  of  the 
defence  of  usury,  is  maintained  by  the  Court  of  Appeals  in 
Trumbo  vs.  Blizzard,  6  Gill  fy  Johns.,  18,  and  I  am  not  able 
to  perceive  why,  if  Barnes  and  the  Masons  might  require  this 
defendant  to  repay  the  excess  which  he  may  have  received  over 
his  debt  and  legal  interest,  the  complainant  who  claims  under 
and  through  them,  may  not  do  so  likewise. 

Acting  upon  this  impression,  the  demurrer  of  the  defendant, 
Thomas,  will  be  overruled,  and  he  will  be  required  to  put  in  a 
full  answer  to  the  bill,  within  some  reasonable  time  to  be  fixed 
by  the  order  of  the  court.  Daniel's  Ch.  Pr.,  674,  675. 

The  only  remaining  question  is  one  of  contribution  among 
the  several  vendees  of  the  lands  embraced  in  the  deed  of  trust. 
The  Court  of  Appeals  have  said,  that  judgment  against  the 
terretenants  gives  the  plaintiff  at  law  a  right  to  sell  as  much  of 
the  land  as  may  be  necessary  to  satisfy  his  claim,  and  if  any 
one  is  injured  he  may  resort  to  a  court  of  equity  to  compel  all 
who  stood  in  equali  jure  to  contribute ;  but  that  the  plaintiff  at 
law  is  not  bound  to  suspend  his  execution  until  the  question  of 
contribution  shall  be  settled. 

The  statements  and  prayers  of  this  bill  are,  I  think,  sufficient 
to  found  a  decree  upon  for  contribution,  as  among  these  ven- 
dees ;  and  they  will,  therefore,  be  required  to  contribute  in  pro- 
portion to  the  value  of  the  land  conveyed  to  each  respectively. 


KIDDALL  VS.  TRIMBLE.  143 

Upon  reading  the  terms  and  trusts  of  the  deed,  the  whole 
property  conveyed,  irrespective  of  the  particular  grantor  in 
whom  the  title  may  have  previously  been,  appears  to  have  been 
intended  to  constitute  one  common  fund,  for  the  satisfaction  of 
all  the  debts  designed  to  be  secured  ;  and  I  am,  therefore,  of 
opinion,  that  the  contribution  among  the  vendees  must  be  sim- 
ply, "in  proportion  to  the  value  of  the  land  conveyed  to  each 
respectively,  without  regard  to  the  original  source  of  the  title," 
that  is,  to  whether  it  was  the  property  of  Abraham  Barnes,  or 
either  of  the  Masons,  and  that  the  value  must  be  ascertained 
from  the  proofs  now  in  the  cause,  and  such  further  proofs  as 
may  be  hereafter  introduced  by  the  parties. 

There  must  also  be  a  decree  for  an  account  against  the  sur- 
viving trustee,  (William  Price  ;  D.  G.  Yost  having  died  before 
the  bill  was  filed  in  the  cause.) 

[So  much  of  this  decree  as  relates  to  John  H.  Thomas  was 
affirmed  on  appeal.  The  Court  of  Appeals  differed  from  the 
Chancellor  on  the  question  of  contribution,  and  upon  the  appeal 
by  Doub,  the  decree  was,  in  part,  affirmed,  and  the  cause  re- 
manded.] 


ELIZA  M.  KIDDALL 

vs. 

WILLIAM    TRIMBLE,    SUR-  }>      DECEMBER  TERM,  1847. 
VIVING  EXECUTOR  OF 
JANE  JACOB. 

[DOWER — MESNE  PROFITS — JURISDICTION — LIMITATIONS.] 

THERE  can  be  no  doubt,  that  when  the  husband  died  seized,  a  court  of  law  has  full 
power  to  compensate  the  widow  in  damages  for  the  detention  of  her  dower. 

But  a  court  of  equity,  alone,  has  power  to  give  the  widow  damages  for  the  de- 
tention of  her  dower  as  against  the  alienee  of  the  husband. 

The  jurisdiction  of  courts  of  equity,  in  cases  of  dower,  is  concurrent  with  that 
of  courts  of  law  ;  and  if  the  legal  title  to  dower  be  admitted  or  settled,  equity 
will  proceed  to  the  assignment  of  the  dower,  and  will  also  compensate  the 
widow  in  damages  for  its  detention. 


144  HIGH  COURT  OF  CHANCERY. 

If  the  widow  die  without  demanding  her  dower,  the  executor  cannot  recover 
the  rents  and  profits  :  the  cases  having  only  gone  to  the  extent  of  entertain- 
ing a  bill  for  the  profits,  where  the  widow  dies,  pending  her  bill  for  dower. 

Whilst  the  suit  for  rents  and  profits  was  depending  in  a  court  of  law,  the  plain- 
tiff voluntarily  aliened  the  legal  estate  out  of  which  the  profits  sprung,  and 
the  direction  of  the  court  to  the  jury  being  generally,  "that  the  plaintiff  was 
not  entitled  to  recover,"  it  was  HELD — 

That  the  court  may  have  been  of  opinion,  that,  as  the  damages,  which  are  given 
for  the  detention  of  the  dower,  are  regarded  as  consequential  or  accessory, 
they  could  not  be  separately  demanded. 

Had  the  action  at  law  been  for  the  dower  itself,  instead  of  being  for  the  rents 
and  profits  of  the  land  withheld  from  the  widow,  her  alienation  pending  that 
suit,  would  have  been  an  effectual  bar  to  her  recovery. 

The  proper  form  of  action  by  which  these  profits,  as  damages,  may  be  recov- 
ered, is  an  action  of  trespass,  as  mesne  profits  are  sued  for,  after  a  recovery  in 
ejectment. 

The  plaintiff  having  sued  for  these  rents  and  profits  at  law,  and  having  failed 
to  recover  them  there,  the  question  as  to  them  must  be  regarded  as  res  adju- 
dicata.  They  cannot  form  the  subject  of  a  new  litigation — the  judgment  at 
law  having  foreclosed  the  plaintiff. 

The  title  to  the  land  itself  must  be  first  vindicated,  before  a  claim  for  the  fruits 
can  be  admitted,  and  a  bill  for  the  rents  and  profits  would  be  premature,  un- 
til the  dower  itself  is  recovered. 

The  statute  of  limitations  does  not  apply  to  the  wife's  remedy,  by  action,  for 
her  dower,  though  it  does  not  follow,  that  lapse  of  time  may  not  operate  as 
a  bar  to  a  bill  for  an  account. 

[William  Jacob,  of  the  city  of  Baltimore,  being  seized  and 
possessed  of  certain  real  estate  in  said  city,  departed  this  life  on 
the  fifteenth  day  of  July,  in  the  year  1804,  leaving  his  wife  Jane 
Jacob  surviving  him  ;  who  took  possession  of  said  real  estate, 
under  the  mistaken  impression  that  she  had  a  life  estate  therein, 
and  continued  to  hold  the  same  until  her  death,  which  occurred 
on  the  19th  July,  1837.  He  had  issue  by  his  said  wife,  a 
daughter,  named  Mary,  who  died  before  him,  and  who,  in  her 
lifetime  had  intermarried  with  a  certain  Thorndick  Chase,  by 
whom  she  had  issue  three  children,  William,  Anne  and  Maria, 
all  of  whom  were  living  at  the  death  of  their  grandfather. 
William  intermarried  with  the  complainant  in  the  year  1807, 
and  died  in  1809,  leaving  issue  a  daughter  named  Maria,  who 
died  in  infancy ;  and  his  widow,  the  complainant,  afterwards 
married  John  Kiddall  who  also  died.  Maria  Chase  married 
Samuel  Handy,  and  died  before  her  brother  William,  without 


KIDDALL  VS.    TRIMBLE.  146 

issue,  whereby  he  became  entitled  to  one-half  of  his   grand- 
father's  estate.      Anna  Chase,  since  deceased,  married   James 
Belt,  and  had  issue,  a  daughter,  named  Jane  I.  Belt,  who  mar- 
ried George  H.  De  la  Roche,  and  to  whom  the  complainant,  in 
the  year  1839,  sold  all  her  dower  interest  in  the  lands  to  which 
her  deceased  husband,  William  Chase,  had  been  entitled.    Jane 
Jacob  left  a  will,  by  which  William  Trimble  was  appointed  her 
executor  ;  in  whose  hands,  after  paying  all  her  debts,  there  re- 
mained the  sum  of  $4,655    90.     In  the   year  1838,  the  com- 
plainant instituted  in  Baltimore  County  Court,  an  action  on  the 
case    against  William    Trimble,    surviving   executor  of  Jane 
Jacob,  for  one-third  of  the  rents   and  profits  of  the  estate,  to 
which  her  husband  was  entitled,  from  his  death,    to  the  death 
of  said  Jane  Jacob  ;  to  which  non  assumpsit  was  pleaded,  and 
upon  which  judgment  was  rendered  against  the  plaintiff,  in  the 
year  1841.     She  then  brought  suit  in  this  court  upon  the  same 
cause  of  action,  against  the   same  defendant ;  who    set  up  by 
way  of  defence,  the  said  judgment ;  'the  sale  to  J  ne  I.  De  la 
Roche  ;  the  absence  of  any  demand    of  dower,    except  by  the 
suit  in  Baltimore  County  Court;  and  the  plea  of  limitations. 

The  case  having  been  argued  before  the  Chancellor,  he  de- 
livered the  following  opinion  :] 

THE  CHANCELLOR  : 

The  bill  in  this  case,  then,  is,  to  recover  a  proportion  of  the 
rents  and  profits  of  certain  real  estate,  in  which  the  complain- 
ant claimed  dower,  upon  the  allegation  that  her  late  husband, 
William  I.  Chase,  died  seized  thereof.  And  there  can  be  no 
doubt,  assuming  such  to  be  the  case,  that  a  court  of  law  was 
competent  to  give  her  damages  for  the  detention  of  her  dower. 
The  statute  of  Merton,  when  the  husband  dies  seized,  giving 
the  wife  damages  equal  to  the  value  of  the  dower,  from  the 
time  of  the  death  of  the  husband.  4  Kent  Com.,  65;  Park  on 
Dower,  302. 

It  was  supposed  at  one  time,  and  indeed  the  impression  was 
strengthened   by  what  fell   from   the  Court  of  Appeals,  in  the 
case  of  Steigerys  administrator  vs.  Hillen,  5  G.  #  /.,  133,  that 
13 


146  HIGH  COURT  OF  CHANCERY. 

a  widow  could  recover  at  law  damages  for  the  detention  of  her 
dower  against  the  alienee  of  her  husband,  though  in  such  a 
case,  the  recovery  would  not  go  back  to  the  death  of  the  hus- 
band, but  only  to  the  demand  and  refusal.  But  in  the  subse- 
quent case  of  Bellman  vs.  Bowen,  8  G.  Sf  J.  50,  upon  a  more 
full  consideration  of  the  subject,  and  review  of  the  authorities, 
the  same  court  came  to  the  conclusion,  that  a  Court  of  Equity 
alone  was  competent  to  give  the  widow  damages  for  the  deten- 
tion of  her  dower,  as  against  the  alienee  of  the  husband.  It  is, 
however,  unquestionable,  that  when  the  husband  died  seized,  a 
court  of  law  has  full  power  to  compensate  the  widow  in  dam- 
ages for  the  detention  of  her  dower.  In  truth,  it  was  question- 
ed at  one  time,  whether  courts  of  equity  could  entertain  general 
jurisdiction  in  cases  of  dower,  to  give  full  relief  in  those  cases 
where  there  appeared  to  be  no  obstacle  to  the  legal  remedy, 
though  upon  a  thorough  examination  of  the  subject,  the  juris- 
diction of  chancery  is  fully  established,  both  as  to  the  assign- 
ment of  dower,  and  the  damages.  The  jurisdiction  is  concur- 
rent with  courts  of  law,  and  if  the  legal  title  to  dower  be  ad- 
mitted, or  settled,  equity  will  proceed  to  the  assignment  of  the 
dower,  and  will  also  compensate  the  widow  in  damages  for  its 
detention.  1  Story  Eq.  sec.,  624  ;  4  Kent  Com.,  71,  72. 

The  Baltimore  County  Court,  then,  having,  upon  the  state- 
ment of  this  bill  that  the  husband  died  seized,  at  least  a  con- 
current jurisdiction  with  this  court,  it  becomes  a  grave  ques- 
tion, how  far,  after  having  sued  in  that  court  to  recover  dam- 
ages for  the  detention  of  her  dower,  the  plaintiff,  failing  there, 
can  be  permitted  to  come  here  and  ask  the  same  relief.  The 
record  in  this  case  does  not  show  upon  what  ground  the  County 
Court  decided  against  the  plaintiff,  the  instruction  of  the  court 
to  the  jury  being  general,  "that  the  plaintiff  was  not  entitled  to 
recover  ;"  and  it  is  argued  by  the  complainant's  council  in  this 
case,  that  this  instruction  must  have  been  founded  upon  a 
want  of  jurisdiction  in  the  court  of  law  over  the  subject  of  the 
suit. 

This,  however,  by  no  means  follows.  At  all  events,  in  the 
absence  of  the  reasons  of  the  court  for  the  instruction  against 


KIDDALL  VS.  TRIMBLE.  147 

the  plaintiff,  it  would  not  be  difficult  to  imagine  other  grounds 
than  the  want  of  jurisdiction.  We  have  seen,  that  whilst  that 
suit  was  depending,  to  wit,  on  the  8th  of  April,  1839,  the 
plaintiff  sold  and  conveyed  to  another,  her  dower  interest  in  the 
lands  in  question ;  and  although  it  may  be  true,  as  argued  by 
the  solicitor  of  the  complainant,  that  this  deed  transferred 
merely  her  interest  in  the  land,  and  not  her  right  to  the  antece- 
dent rents  and  profits,  it  is  yet  possible  that  it  may  have  been 
thought  that  a  transfer  of  the  legal  estate  out  of  which  the 
profits  arose,  carried  with  it,  or  extinguished  the  claim  to  the 
profits  themselves.  It  seems  to  be  settled,  that  if  the  widow 
die  without  demanding  her  dower,  the  executor  cannot  recover 
the  rents  and  profits  ;  the  cases  having  only  gone  to  the  extent 
of  entertaining  a  bill  for  the  profits  where  the  widow  dies, 
pending  her  bill  for  dower.  Under  such  circumstances,  the 
Court  of  Appeals  say,  in  the  case  of  Steiger  vs.  Hillen,  the 
representatives  of  the  widow  may,  in  equity,  be  allowed  the 
rents  and  profits,  with  this  exception,  "where  the  legal  estate, 
out  of  which  the  profits  are  to  spring,  is  gone,  the  claim  to  such 
profits  falls  with  it,"  unless  under  particular  circumstances  such 
as  are  adverted  to  in  that  case. 

Now,  in  this  case,  whilst  the  suit  was  depending  in  Balti- 
more County  Court,  for  these  rents  and  profits,  there  was  a  vol- 
untary alienation  of  the  legal  estate  out  of  which  the  profits 
sprung — that  is,  the  principal  was  parted  with,  and  it  may  be, 
that  the  court  thought,  the  principal  being  gone,  the  incident — 
the  profits — fell  with  it.  The  damages  which  are  given  for  the 
detention  of  the  dower,  are  regarded  as  consequential  or  acces- 
sory, and  the  County  Court  may  have  been  of  opinion,  that 
they  could  not  be  separately  demanded.  Cases  can  certainly 
be  found  in  which  it  has  been  decided,  that  the  claim  for  mesne 
profits  cannot  be  supported,  when  the  property,  in  respect  of 
which  they  were  claimed,  had  been  parted  with.  It  is  very  cer- 
tain, that  if  the  action  in  the  County  Court,  instead  of  being 
for  the  rents  and  profits  of  the  land  withheld  from  the  widow, 
had  been  for  the  dower  itself,  her  deed  of  the  8th  of  April, 
1839,  would  have  been  an  effectual  bar  to  her  recovery  ;  and 


148  HIGH   COURT  OF   CHANCERY. 

hence  the  County  Court  may  have  concluded,  that  as  the 
plaintiff's  title  to  recover  the  land  from  which  the  profits  were 
derived,  had  been  extinguished,  by  her  own  voluntary  act,  the 
consequential,  or  accessorial  right  to  the  profits  necessarily  fell 
also. 

The  judgment  of  the  County  Court,  against  the  plaintiff's 
right  to  recover,  may  have  been  placed  upon  another  ground 
wholly  distinct  from  the  question  of  jurisdiction.  The  action, 
as  has  been  stated,  was  for  money  had  and  received  to  the 
plaintiff's  use,  and  not  trespass  for  the  mesne  profits.  Now,  it 
may  be,  that  the  court  thought  the  form  of  the  remedy  had  been 
misconceived.  The  statute  of  Merton  gives  these  profits  as 
damages,  and  they  are  to  be  recovered  by  action  of  trespass,  as 
such  profits  are  sued  for,  after  a  recovery  in  ejectment.  The 
County  Court  may  then  have  been  of  opinion  that  the  action 
was  misconceived,  and,  for  that  reason,  have  instructed  the  jury 
adversely  to  the  plaintiff,  and  not,  as  has  been  suggested,  for 
want  of  jurisdiction.  Stockett  vs.  Watkins,  2  Gill  fy  Johns., 
326.  Now,  if  this  was  the  case,  and  the  plaintiff  failed  in  her 
action  at  law,  because  she  had  mistaken  the  form  of  the  remedy, 
and  not  because  the  tribunal  to  which  she  appealed  was  incom- 
petent to  relieve  her  in  a  different  form,  it  can  scarcely  be  offer- 
ed as  an  answer,  when  the  effect  of  that  judgment  (being  the 
judgment,  in  the  case  supposed,  of  a  court  of  competent  juris- 
diction) is  pressed  as  a  reason  why  the  defendant  should  not  be 
impleaded  again  in  a  different  court,  for  the  same  cause. 

For  these  reasons,  I  am  strongly  inclined  to  the  opinion,  that 
as  the  plaintiff  sued  for  these  rents  and  profits  at  law,  and  fail- 
ed to  recover  them  there,  the  question  as  to  them,  must,  in  the 
language  of  the  Court  of  Appeals  in  Sellman  vs.  Bowen,  be 
regarded  as  res  adjudicata,  "that  they  cannot  form  the  subject 
of  a  new  litigation,  the  judgment  which  has  already  passed, 
having  foreclosed  the  plaintiff." 

There  is  besides  another  objection,  which  strikes  me  as  of 
great  force.  This  bill  was  filed  on  the  2d  of  November,  1841, 
and  is  to  recover  the  rents  and  profits  of  land,  her  title  to  which, 
the  complainant,  on  the  8th  of  April,  1839,  transferred  by  her 


KIDDALL   VS.    TRIMBLE.  149 

deed  to  another.  There  certainly  seems  much  difficulty  in  main- 
taining, that  even  in  a  court  of  equity,  and  independently  of  the 
previous  unsuccessful  proceeding  at  law,  a  party  can,  after 
transferring  his  right  to  the  principal,  recover  the  accessory. 

In  the  case  of  Norton  vs.  Tucker,  1  Atk.,  525,  it  was  decided, 
that  a  bill  for  an  account  of  the  rents  and  profits  was  improper 
and  premature,  until  the  possession  of  the  property  was  recov- 
ered, and  that  the  proceeding  in  equity  was  the  same  as  at  law, 
where  trespass  would  not  lie  for  mesne  profits,  till  possession 
was  recovered  by  ejectment.  Now,  if  this  is  the  rule,  and  a 
bill  for  the  rents  and  profits  would  be  premature,  until  the  dower 
itself  was  recovered,  assuming  the  plaintiff  not  to  have  parted 
with  her  title  thereto,  it  is  not  easily  seen  how  her  condition  is 
improved  by  the  circumstance  of  her  having  deprived  herself  of 
the  capacity  to  recover  it.  If  the  title  to  the  principal  thing 
must  be  successfully  asserted,  before  the  incident  can  be  claim- 
ed, it  is  immaterial  whether  the  failure  to  do  the  former  is  the 
result  of  neglect,  or  of  some  act  by  which  the  party  is  preclud- 
ed from  setting  up  the  demand.  It  is  enough  that  an  indis- 
pensable preliminary  act  has  not  been  performed. 

In  this  case  it  will  be  found,  that  the  answer  of  the  defendant 
does  not  admit  the  seisin  of  the  husband  at  his  death,  and,  per- 
haps, if  that  were  a  question,  it  might  be  necessary  to  send  it  to 
a  court  of  law  for  determination.  But  an  action  could  not  now 
be  maintained  in  a  court  of  law  for  that  purpose,  because  the  com- 
plainant, by  her  deed,  has  unquestionably  stripped  herself  of  all 
title  to  dower  in  the  land  ;  and,  therefore,  it  follows,  that  under 
this  bill,  which  does  not  claim  dower,  but  only  rents  and  pro- 
tils,  the  court  must  decide  upon  the  right  of  the  complainant  to 
dower. 

There  is  a  manifest  propriety  in  the  principle  which  requires 
that  the  title  to  the  land  itself  shall  be  first  vindicated,  before  a 
claim  for  the  fruits  can  be  admitted ;  as  otherwise,  in  a  pro- 
ceeding which  involves  nothing  more  than  the  claim  for  the 
accessory,  the  court  would  find  itself  engaged  in  determining 
upon  the  right  to  the  principal.  Surely,  if  the  title  to  principal 
and  accessory  are  not  decided  at  the  same  time,  but  are  pre- 
13* 


150  HIGH   COURT  OF   CHANCERY. 

sented  separately,  the  adjudication  upon  the  former  should  pre- 
cede the  latter,  as  otherwise,  after  a  decision  in  favor  of  a  claim 
for  the  accessory,  the  title  of  the  party  to  the  principal  might  be 
successfully  disputed.  There  has,  in  this  case,  been  no  judgment 
establishing  the  complainant's  claim  to  dower  in  these  lands, 
and  her  title  is  certainly  not  admitted.  Now,  suppose  the  court 
upon  this  bill,  should  decree  an  account  of  rents  and  profits, 
and  the  grantee  in  the  deed  from  the  complainant  should  be 
defeated  in  the  assertion  of  the  title  thereby  conveyed  ;  it  is 
obvious,  not  only  that  there  would  be  conflicting  judgments, 
but  that  injustice  would  be  done  to  the  one  party  or  the  other  ; 
which  could  readily  have  been  avoided  by  requiring  the  dower 
title  to  the  first  established. 

The  late  Chancellor,  in  the  case  of  Chase  vs.  Manhardt,  1 
Bland,  333,  decided,  that  if  a  creditor  in  any  manner  receives 
only  the  principal  of  his  debt,  so  as  not  to  relinquish  his  claim 
to  the  interest  then  due,  he  may  afterwards  recover  the  interest 
as  if  it  were  a  part  of  the  principal ;  and  this  decision  appears 
to  be  warranted  by  the  case  of  Snowden  vs.  Thomas,  4  H.  fy  7., 
335.  But  the  receipt  of  the  principal  debt  without  an  intention 
or  agreement  to  surrender  the  interest,  is  widely  different  from 
an  assignment  or  transfer  of  the  principal,  though  such  transfer 
may  not  have  been  designed  to  carry  with  it  the  interest  which 
had  accrued  at  the  time.  My  impression  is,  it  would  be  diffi- 
cult to  find  a  case  in  which  a  party,  after  an  assignment  of  the 
principal  debt,  though  he  may  have  intended  to  reserve  his  right 
to  the  interest  accrued  at  the  time,  has  succeeded  in  recovering 
the  interest;  and  the  difficulty,  I  am  persuaded,  would  be  quite 
as  great,  to  establish  by  authority  the  right  to  recover  the  rents 
and  profits  of  land,  before  the  title  to  the  land  itself  was  made 
out,  or  after  the  questionable  title  had  been  parted  with. 

I  am,  therefore,  of  opinion,  upon  this  ground,  that  the  com- 
plainant cannot  have  the  relief  which  she  seeks  by  her  bill. 

No  opinion  is  expressed  upon  the  defence  founded  upon  the 
lapse  of  time,  and  limitations. 

The  statute  of  limitations  does  not  apply  to  the  wife's  reme- 
dy by  action  for  her  dower,  though  it  does  not  follow  that  lapse 


GRAIN  VS.  BARNES  AND  FERGUSSON.  151 

of  time  may  not  operate  as  a  bar  to  a  bill  for  an  account ;  and, 
perhaps,  if  it  were  necessary  in  this  case  to  examine  into  the 
circumstances  which  are  relied  upon  as  an  excuse  for  the  delay, 
they  would  not  be  found  sufficient  to  account  for  it. 

[The  decree  in  this  case  was  affirmed  by  the  Court  of  Ap- 
peals.] 


PETER  W.  GRAIN  ET  AL.     ^ 

vs.  >•    DECEMBER  TERM,  1847. 

BARNES  AND  FERGUSSON.  5 

[GUARDIAN  AND  WARD — JURISDICTION — PRACTICE — PROOF  OF  PAYMENT.] 

A  PROCEEDING  by  the  representatives  of  a  ward  against  the  executors  of  a 
guardian,  to  recover  a  legacy  bequeathed  to  the  ward,  and  which  the  guar- 
dian had  received  from  the  executors  of  the  testator  who  made  the  bequest, 
is  clearly  within  the  jurisdiction  of  a  court  of  equity. 

The  relation  of  guardian  and  ward,  and  the  rights  and  obligations  which  grow 
out  of  it,  are  peculiarly  within  the  jurisdiction  of  a  court  of  equity,  and  its 
power  to  afford  a  remedy  for  a  breach  of  the  trust  cannot  be  questioned,  un- 
less it  has  been  taken  away  by  some  express  statutory  enactment. 

Every  guardian,  however,  appointed,  is  responsible  in  equity  for  his  conduct, 
and  may  be  removed  for  misbehavior. 

Where  the  Court  of  Chancery  has  original  jurisdiction,  it  is  not  deprived  of  it 
because  the  courts  of  law,  by  statutory  enactment,  may  have  power  over  the 
same  subject,  when  the  enactments  giving  them  authority  contain  no  provi- 
sions depriving  this  court  of  its  ancient  jurisdiction. 

It  is  too  late  to  urge  the  objection  of  misjoinder  of  plaintiffs,  when  the  case  is 
ready  for  decision  upon  the  merits,  when  there  is  no  demurrer,  and  the  an- 
swer takes  no  such  defence. 

Courts  of  equity  are  not  subject  to  those  strict  technical  rules,  which  in  other 
courts  are  sometimes  found  in  the  way  and  difficult  to  surmount.  The  rem- 
edies here  are  moulded  so  as  to  reach  the  real  merits  of  the  controversy,  and 
justice  will  not  be  suffered  to  be  entangled  in  a  web  of  technicalities. 

The  omission  of  the  prayer  for  the  specific  relief,  is  no  reason  why,  under  the 
general  prayer,  the  complainants  may  not  have  such  relief,  as  the  case  al- 
leged and  proved  may  entitle  them  to. 

The  only  limitation  upon  the  power  of  the  court  to  grant  relief  under  the  gen- 
eral prayer,  is,  that  it  must  be  agreeable  to  the  case  made  by  the  bill,  and 
not  different  from  or  inconsistent  with  it. 


152  HIGH  COURT  OF  CHANCERY. 

As  evidence  of  payment  of  a  legacy  due  to  a  ward,  the  defendants  relied  upon 
a  memorandum  in  the  hand  writing  of  C.,  the  husband  of  the  ward,  by  which 
he  charged  himself  with  "amount  of  B's  draft  of  $500."  (B.  being  the  guar- 
dian.) The  draft  was  not  produced,  and  there  was  no  proof  of  its  payment, 
or  on  what  account  it  was  drawn.  They  further  claimed  a  credit  of  $1500, 
being  the  amount  of  a  check  by  B.  on  the  Bank  of  Baltimore,  payable  to  C. 
or  bearer,  which  was  paid  by  the  bank,  but  to  whom  the  money  was  paid,  did 
not  appear.  HELD — 

That  this  evidence  of  payment  was  wholly  inconclusive  and  unsatisfactory, 
and  that  it  would  be  a  departure  from  the  rules  established  for  the  ascertain- 
ment of  truth,  to  give  it  the  effect  for  which  the  defendants  insist. 

Courts  of  justice  are  not  at  liberty  to  indulge  in  wild,  irrational  conjectures,  or 
licentious  speculations,  but  must  act  upon  fixed  and  settled  rules.  And  it  is 
far  better  that  individuals  should  occasionally  suffer,  than  that  principles, 
which  time  and  experience  have  shown  to  be  essential  to  the  ascertainment 
of  truth,  should  be  broken  down  or  disregarded. 

Where  no  time  is  fixed  by  the  will  for  the  payment  of  a  legacy,  it  will  bear 
interest  from  the  expiration  of  one  year  after  the  death  of  the  testator. 

[By  the  last  will  and  testament  of  Samuel  Bond,  dated  8th 
July,  1818,  Mary  Clarissa  Bond  Barnes,  was  bequeathed  a  leg- 
acy of  $3000,  and  also  one-fourth  of  his  slaves.  John  Barnes, 
her  father,  and  surviving  executor  of  the  deceased,  passed  his 
first  and  final  account  on  the  14th  April,  1830,  showing  a  bal- 
ance of  $38,338 16  in  his  hands  for  distribution  amongst  the  par- 
ties entitled.  As  guardian  to  his  daughter,  he  was  awarded  by 
the  Orphan's  Court  a  proportion  of  the  slaves,  estimated  at 
$2337  50,  and  the  pecuniary  legacy  of  $3000.  Mary  C,  B. 
Barnes,  intermarried  with  William  P.  Compton,  in  the  year, 
1825,  and  died  in  the  year  1834,  leaving  her  husband,  and  an 
infant  son,  Barnes  Compton,  surviving  her,  of  whom  the  for- 
mer died  in  1837.  At  his  death,  John  Barnes  became  guardian 
of  the  infant,  and  bonded  as  such.  Said  Barnes  died  also,  in 
the  year  1844,  and  by  his  will  appointed  the  defendants,  Rich- 
ard Barnes,  and  Robert  Fergusson,  his  executors.  Letters  of 
administration  on  the  estate  of  Mary  C.  B.  Compton  were  sub- 
sequently granted  to  Peter  W.  Grain,  and  Henry  G.  S.  Key, 
who  in  their  representative  capacity,  and  as  the  next  friend,  of 
said  Barnes  Compton,  sued  the  executors  of  John  Barnes  for  the 
pecuniary  legacy  which  they  allege  to  be  still  due;  admitting 
the  receipt  by  Compton  and  wife,  of  her  share  of  the  negroes. 


GRAIN  VS.  BARNES  AND  FERGUSSON.  153 

The  defence  made  by  the  answer  was,  payment  in  whole,  or  in 
part,  and  sundry  objections  to  the  form  of  the  bill,  were  urged, 
at  the  hearing.  In  evidence  of  payment,  the  defendants  rely 
partly  upon  a  paper  filed,  containing  a  memorandum  in  Comp- 
ton's  hand  writing,  by  which  he  charges  himself  with  "amount 
of  Barnes'  draft  $500,"  which  draft  was  not  produced  nor  was 
any  proof  offered  of  its  payment,  or  to  show  upon  what  account 
it  was  drawn.  Another  credit  of  $1500,  was  also  claimed  by 
the  defendants,  the  character  of  which  will  appear  in  the 
Chancellor's  opinion. 

The  first  point  noticed  by  the  Chancellor,  was  the  alleged 
want  of  jurisdiction  in  the  court  to  decree  a  payment  of  the 
legacy,  the  courts  of  law  being  fully  competent  to  give  relief, 
in  reference  to  which,  he  said  :] 

THE  CHANCELLOR: 

Considering  this  as  the  will  of  the  administrators  of  Mrs. 
Compton,  and  that  the  right  to  recover,  if  it  exists  at  all,  is  in 
them,  it  is  a  proceeding,  the  representatives  of  a  ward,  against 
the  executors  of  a  guardian,  to  recover  a  legacy  which  had 
been  bequeathed  the  ward,  and  which  the  guardian  in  that  ca- 
pacity had  received  from  the  executors  of  the  testator,  by  whom 
the  bequest  was  made. 

It  is  a  bill,  then,  in  equity,  by  a  ward  against  her  guardian — 
that  is  by  a  cestuique  trust,  against  the  trustee.  The  relation 
of  guardian  and  ward  constituting,  as  Mr.  Justice  Story  says, 
the  most  important  and  delicate  of  trusts,  and  as  this  relation 
and  the  rights  and  obligations  which  grow  out  of  it,  are  pecu- 
liarly within  the  jurisdiction  of  this  court,  its  power  to  afford  a 
remedy  for  a  breach  of  the  trust  cannot  be  denied,  unless  it  can 
be  clearly  shown  to  have  been  taken  away  by  some  express  stat- 
utory enactment. 

In  the  matter  of  Andrews,  1  Johns.  Chan.  Rep.,  99,  Chan- 
cellor Kent  says,  that  every  guardian,  however  appointed,  is  re- 
sponsible in  equity  for  his  conduct,  and  may  be  removed  for 
misbehavior,  and  that  a  testamentary,  or  statute  guardian,  is 
as  much  under  the  superintendance  of  the  Court  of  Chancery 
as  the  guardian  in  socage. 


154  HIGH  COURT  OF  CHANCERY. 

The  jurisdiction  of  the  courts  of  equity  to  superintend  the 
administration  or  assets,  and  to  secure  the  payment  of  what 
may  be  left,  after  the  discharge  of  debts,  &c.,  either  to  legatees 
or  distributees,  seems  to  be  as  firmly  established  ;  for,  notwith- 
standing the  act  of  parliament  which  gives  to  the  spiritual  court, 
in  England,  authority  to  decree  a  distribution  of  the  residue,  it 
has  been  held  that  as  the  act  does  not  contain  negative  words, 
the  jurisdiction  of  the  Court  of  Chancery  was  not  taken  away. 
1  Story  Eq.j  sec.  542. 

And  in  the  case  of  Drury  vs.  Conner.  1  H.  if  G.,  220,  the 
right  of  a  ward  to  proceed  in  equity  against  his  guardian,  is 
treated  as  a  right,  not  open  to  controversy.  In  this  case,  it  is 
urged,  that  there  is  no  necessity  for  an  account,  because  the 
amount  claimed  is  specific  and  liquidated,  and  that  the  remedy 
at  law  might  be  prosecuted  upon  the  bond  of  the  guardian, 
without  difficulty  or  embarrassment.  It  will  be  remembered, 
however,  that  though  the  amount  claimed  by  the  bill  is  liquida- 
ted, an  account  of  the  assets  may  be  necessary,  there  being  noth- 
ing at  this  time  in  the  case  to  show  them  to  be  sufficient.  But 
the  jurisdiction  of  the  court  is  not  put  upon  this  ground,  but  up- 
on the  ground  that  this  is  one  of  those  cases,  in  which  this 
court  having  original  jurisdiction,  is  not  deprived  of  it, 
because  the  courts  of  law  by  statutory  enactment  may  have 
power  over  the  same  subject ;  the  enactments  giving  them  au- 
thority, containing  no  provisions  depriving  this  court  of  its 
ancient  jurisdiction.  Indeed,  the  remedy  in  this  court  is  so 
much  more  complete,  and  the  power  of  the  court  of  law,  in 
many  cases  involving  the  administration  of  assets,  so  entirely 
inadequate,  that  it  would  be  matter  of  serious  regret,  if  the 
conferring  of  jurisdiction  upon  the  latter,  should  have  the  ef- 
fect of  ousting  the  former. 

The  next  objection  urged  to  a  decree  upon  this  bill  is,  that 
the  complainants  are  improperly  joined ;  and  it  is  contended 
that  this  is  an  objection  which  may  be  taken  at  the  hearing, 
though  there  is  no  demurrer,  and  the  answer  takes  no  such  de- 
fence. 

There  may  be  cases  in  which  an  objection  of  this  descrip- 


GRAIN  VS.  BARNES  AND  FERGUSSON.  155 

tion  will  be  allowed  at  the  hearing,  though  not  raised  upon  the 
pleading,  but  certainly  the  general  rule  is,  that  it  comes  too 
late,  if  deferred  to  the  hearing  of  the  cause.  Watertonvs.  Cow- 
en,  4  Paige,  510;  1  Daniel's  Ch.,  Prac.,  350.  Mr.  Justice 
Story  says,  in  cases  of  misjoinder  of  plaintiffs,  the  objection 
ought  to  be  taken  by  demurrer  ;  for  if  not  so  taken,  and  the 
court  proceeds  to  a  hearing  upon  the  merits,  it  will  be  disre- 
garded, at  least  if  it  does  not  materially  affect  the  propriety  of 
the  decree.  Story's  Equity  Plead.,  sees.  540,  544.  In  the  case 
before  the  court,  it  is  not  seen  how  the  misjoinder  of  the 
parties  can  affect  the  propriety  of  the  decree. 

There  is  no  conflict  between  them,  the  beneficial  interest 
being  admitted  by  the  bill  to  be  in  Barnes  Compton,  the  minor, 
and  the  administrator  of  his  mother  having  only  become  such 
and  united  in  the  suit,  that  a  full  indemnity  might  be  given  the 
defendants,  upon  the  payment  of  the  legacy. 

The  case  of  Rhodes  vs.  Wharbutton,  6  Sim.  resp.,  617,  is 
express  to  show,  that  such  an  association  of  parties  as  com- 
plainants, is  not  even  faulty  upon  demurrer. 

Courts  of  equity  are  not,  in  the  dispensation  of  justice,  sub- 
ject to  those  strict  technical  rules,  which  in  other  courts  are 
sometimes  found  in  the  way,  and  so  difficult  to  surmount.  The 
remedies  here  are  moulded,  so  as  to  reach,  if  practicable,  the 
real  merits  of  the  controversy,  and  justice  will  not  be  suffered 
to  be  entangled  in  a  web  of  technicalities.  If  such  a  decree 
can  be  put  upon  the  record  as  will  meet  the  substantial  justice 
of  the  case,  it  will  be  done.  The  Court  of  Appeals  of  this 
state,  in  the  case  of  McCormick  vs.  Gibbon,  3  Gill  fy  Johnson, 
12,  shows,  conclusively,  that  a  defence  like  the  present,  cannot 
at  all  events  be  brought  forward  for  the  first  time  at  this  stage 
of  the  proceedings,  when  if  presented  at  an  earlier  period  the 
objection  could  have  been  removed  by  an  amendment  of  the 
bill.  In  the  case  referred  to,  the  court  say,  a  decree  may  give 
relief  to  both  complainants,  or  separate  and  distinct  relief  to 
each.  As  to  one,  the  bill  may  be  dismissed,  whilst  full  relief 
is  granted  to  the  other.  And  that  the  same  principle  applies  to 
the  defendants,  is  also  stated  in  the  same  case,  the  relief  being 


156  HIGH  COURT  OF  CHANCERY. 

joint,  or  several,  as  may  be  required  to  meet  the  justice  of  the 
controversy,  as  disclosed  by  the  evidence. 

Upon  this  objection,  then,  I  am  clearly  of  opinion,  that  even 
if  it  could  have  been  successfully  urged,  it  is  too  late  now, 
when  the  case  is  ready  for  decision  upon  the  merits. 

The  next  objection  of  the  defendants  to  the  passing  of  a  de- 
cree upon  this  bill,  is,  that  the  relief  brought  by  it,  is  improp- 
erly prayed,  there  being  no  special  prayer.  The  prayer  is,  that 
the  plaintiffs  may  have  such  relief  as  equity  may  require,  and 
this,  it  is  said,  is  insufficient,  standing  by  itself,  unaccompanied 
by  any  special  prayer. 

The  object  of  all  pleading  is,  to  give  to  parties  notice  of  the 
ground  of  claim,  and  defence,  or  upon  which  demands  are  as- 
serted or  resisted,  and  when  this  is  done,  the  object  of  the  rules 
of  pleading  is  attained.  Now,  there  can  be  no  doubt  that  the 
defendants  in  this  case  had  notice  by  the  bill,  of  the  relief  which 
was  sought  against  them.  They  know  that  the  object  of  the 
complainants  was  to  make  them  pay  this  legacy ;  and  they  defend 
themselves  against  the  demand,  by  stating,  in  their  answer,  that 
it  had  been  wholly  or  partially  paid. 

They  cannot,  therefore,  complain  that  they  have  been  taken  by 
surprise,  when  the  relief,  sought  under  the  general  prayer  of 
this  bill  in  the  identical  relief  against  which  the  answer  sets  up 
the  defence. 

Upon  principle,  therefore,  it  would  seem  very  obvious,  that 
after  having  presented  this  issue,  and  gone  to  trial  upon  it,  up- 
on the  evidence,  the  defendants  should  not  now  be  permitted 
to  say  that  the  bill  is  defective  in  this  respect. 

But,  independently  of  principle,  it  seems  very  clear  upon  au- 
thority, that  the  objection  cannot  be  sustained.  The  only  lim- 
itation upon  the  power  of  the  court  to  grant  relief  under  the 
the  general  prayer  is,  that  it  must  be  agreeable  to  the  case  made 
by  the  bill,  and  not  different  from,  or  inconsistent  with  it.  Cham- 
bers vs.  Chalmers,  6  H.  fy  /.,  29. 

In  Bentley  vs.  Cowman,  6  G.  fy  /.,  152,  the  Court  of  Ap- 
peals say,  that  the  extent  and  character  of  the  relief  which  may 
be  granted  under  the  general  prayer,  depends  upon  the  facts 


GRAIN  VS.  BARNES  AND  FERGUSSON.  157 

charged  in  the  bill.  And  in  the  case  of  Gibson  vs.  McCormictc, 
10  Gill  4r  Johns.,  108,  the  same  tribunal  affirms  the  rule  to  be 
unquestionable,  that  if  a  complainant  cannot  obtain  the  specific 
relief  for  which  he  prays,  he  may  obtain  any  relief  consistent 
therewith,  warranted  by  the  allegations  of  his  bill,  provided  it 
contains  a  prayer  for  general  relief. 

If  then  the  court  may  upon  a  bill  containing  a  specific  prayer 
for  relief  refuse  that  specific  relief,  and  under  the  general  prayer, 
grant  such  relief  as  may  be  warranted  by  the  case  made  by  the 
bill,  and  as  may  not  be  inconsistent  with  the  special  prayer,  no 
reason  can  be  perceived,  why  in  the  absence  of  any  special 
prayer,  the  court  shall  not  be  at  liberty  to  give  the  complainant 
such  redress  as  the  case  made  by  his  bill  may  entitle  him  to. 

In  Story's  Equity  Pleadings,  sec.  41,  it  is  stated,  that  as  a 
general  rule,  the  general  prayer  alone  is  sufficient,  though  there 
are  exceptions ;  such  for  example  as  the  remedy  by  injunction, 
which,  for  special  reasons,  will  never  be  granted,  unless  express- 
ly asked  for,  not  only  in  the  prayer  for  relief,  but  in  the  prayer 
of  process.  And  in  the  case  of  Cook  vs.  Martyn,  2  Jltk.,  3, 
Lord  Hardwicke  said,  the  general  prayer,  standing  by  itself,  was 
quite  sufficient.  In  Grimes  vs.  French,  ibid.,  141,  it  was  de- 
cided by  the  same  Chancellor,  "that  though  you  pray  general 
relief  by  your  bill,  you  may  at  the  bar  pray  particular  relief,  that 
is  agreeable  to  the  case  made  by  the  bill ;  but  you  cannot  pray 
a  particular  relief  which  is  entirely  different  from  the  case." 

The  same  question  was  brought  before  the  Vice-Chancellor, 
Sir  John  Leach,  in.  the  case  of  Wilkinson  vs.  Beall  et  al.,  4 
Madd.  Resp.,  408,  who  observed,  "that  if  a  party  prays  a  par- 
ticular relief,  to  which  he  is  not  entitled,  he  may  nevertheless 
under  the  prayer  for  general  relief,  have  such  relief  as  he  is  en- 
titled to  upon  the  case  alleged  and  proved  ;  and  that  he  could 
not  be  in  a  worse  situation,  because  he  had  not  prayed  a  par- 
ticular relief,  to  which  he  was  not  entitled." 

I  am,  therefore,  of  opinion,  that  the  omission  in  this  bill  of 
the  particular  prayer,  is  no  reason  why,  under  the  general 
prayer,  the  complainants  may  not  have  such  relief,  as  the  case 
alleged,  and  proved  may  entitle  them  to. 

VOL.   I 14 


158  HIGH   COURT  OF   CHANCERY. 

The  questions  of  form  being  disposed  of,  it  remains  briefly 
to  consider  the  case  upon  its  merits,  as  disclosed  by  the  evi- 
dence. 

The  issue  presented  by  the  pleading  is,  payment,  or  non  pay- 
ment, and  the  onus  of  that  issue  is  upon  the  defendants. 

Their  answer,  from  the  nature  of  the  case,  is  not  evidence, 
because  they  cannot  have,  and  do  not,  indeed,  pretend  to  have, 
any  personal  knowledge  upon  the  subject,  and  speak  only  of  their 
impressions  founded  upon  circumstances,  which  it  is  presumed 
are  laid  before  the  court  in  the  testimony. 

It  appears  from  a  book  indorsed  "accounts  of  John  Barnes, 
surviving  executor  of  Samuel  Bond,"  filed  by  the  defendants, 
that  John  Barnes  did,  as  guardian  to  Mary  C.  B.  Barnes,  his 
daughter,  receive  her  proportion  of  the  negroes,  and  the  pecu- 
niary legacy  of  three  thousand  dollars  bequeathed  her  by  the 
testator,  Samuel  Bond,  and  the  defendants,  therefore,  as  the 
executors  of  the  said  Barnes  must  be  decreed  to  pay  that  leg- 
acy, unless  they  have  succeeded  in  proving  payment  of  it  in 
whole  or  in  part. 

[The  Chancellor,  after  alluding  to  the  draft  for  $500,  men- 
tioned above,  said :] 

It  is  possible,  certainly,  that  it  may  have  been  a  draft  by 
Compton  on  Barnes,  and  that  the  latter  may  have  accepted  and 
paid  in  part  discharge  of  the  legacy  ;  but  looking  to  the  paper 
itself,  and  in  the  absence  of  the  draft,  which,  if  paid,  ought  to 
have  been  in  the  possession  of  Barnes,  it  seems  to  me,  it  would 
be  a  departure  from  those  rules  which  have  been  established 
for  the  ascertainment  of  truth,  to  give  it  the  effect  for  which  the 
defendants  insist. 

The  defendants  also  claim  a  credit  for  the  sum  of  fifteen  hun- 
dred dollars,  being  the  amount  of  a  check  by  John  Barnes,  on 
the  Bank  of  Baltimore,  dated  the  25th  of  October,  1831,  drawn 
payable  to  William  P.  Compton,  or  bearer,  and  which  appears, 
by  the  evidence,  to  have  been  paid  by  the  bank  on  the  day  fol- 
lowing. It  also  appears,  by  the  evidence  of  the  bank  officer, 


GRAIN  VS.  BARNES  AND   FERGUSSON.  159 

that  the  check  for  the  precise  balance  standing  to  the  credit  of 
Mrs.  Barnes,  but  to  whom  the  money  was  paid,  does  not  ap- 
pear, and  it  is  very  certain,  that  the  check  authorized  any  bearer 
to  receive  it,  it  being,  in  effect,  payable  to  bearer.  Now,  in 
this  state  of  the  case,  can  this  court  undertake  to  say,  that  this 
sum  of  fifteen  hundred  dollars  was  paid  by  Barnes  to  Compton, 
on  account  of  the  legacy  bequeathed  by  Bond  to  Mary  C.  B. 
Barnes  ? 

It  has  been  said  by  high  authority,  that  courts  of  justice  are 
not  at  liberty  to  indulge  in  wild  irrational  conjectures,  or  licen- 
tious speculation.  They  must  act  upon  fixed  and  settled  rules, 
or  the  rights  of  persons  and  property,  for  the  preservation  of 
which  they  are  instituted,  will  be  exposed  to  painful  uncertain- 
ty, or  involved  in  inextricable  confusion.  It  is  true,  that  a  rigid 
adherance  to  those  rules  may  sometimes  work  injustice  in  par- 
ticular cases,  but  it  is  far  better  that  individuals  should  occa- 
sionally suffer,  than  that  principles,  which  time  and  experience 
have  shown  to  be  essential  to  the  ascertainment  of  truth,  shall 
be  broken  down,  or  disregarded. 

It  is  certainly  possible,  that  these  two  sums  of  five  hundred 
and  fifteen  hundred  dollars,  may  have  been  paid  on  account  of 
this  legacy,  and  if  so,  the  estate  of  Mr.  Barnes  is  injured  by  the 
refusal  of  the  court  t«r  allow  credit  for  them? 

But  who  is  to  blame  for  it?  Surely  himself  in  neglecting 
those  ordinary  precautions  which  are  usually  observed  in  the 
transaction  of  business.  He  took  no  receipts.  He  passed  no 
account  as  guardian  claiming  credits.  He  made  no  entry  in  his 
books,  or  any  memorandum  among  his  papers  (so  far  as  the 
proof  shows)  of  any  such  payments.  The  written  evidence  re- 
lied upon,  together  with  the  parol  proof  of  Mr.  Stone,  is  wholly 
inconclusive  and  unsatisfactory  ;  and  I,  therefore,  feel  it  to  be 
my  duty  not  to  give  it  the  weight  attached  to  it. 

The  court,  therefore,  will  sign  an  order,  referring  this  case 
to  the  Auditor,  with  directions  to  state  an  account,  in  which  the 
defendants,  as  the  executors  of  the  late  John  Barnes,  will  be 
charged  with  the  pecuniary  legacy  bequeathed  by  the  late 
Samuel  Bond  to  Mary  C.  B.  Barnes,  afterwards  Mary  C.  B. 


160 


HIGH  COURT  OF  CHANCERY. 


Corapton,  with  interest  from  the  expiration  of  one  year  after  the 
death  of  the  testator,  in  conformity  with  the  general  rule  upon 
the  subject  of  interest  when  no  time  of  payment  is  named  by 
the  will,  the  said  sum,  with  the  interest  to  be  paid  to  the  com- 
plainants, Grain  and  Key,  as  the  administrators  of  the  said 
Mary  C.  B.  Compton.  The  Auditor  will  be  also  directed  to 
take  an  account  of  the  assets  of  the  estate  of  the  said  John 
Barnes,  in  the  hands  of  his  executors,  from  the  pleadings  and 
proofs  now  in  the  cause,  and  such  further  proofs  as  may  be  laid 
before  him  by  a  day  to  be  limited  in  the  order,  for  the  purpose 
of  ascertaining  whether  there  shall  be  any  abatement  of  said 
legacy,  on  account  of  a  deficiency  of  assets.  He  will  also  state 
an  account  between  the  administrators  of  the  said  Mary  C.  B. 
Compton,  and  the  minors  of  Barnes  to  the  end,  that  such  final 
disposition  may  be  made  of  the  case  as  the  rights  of  the  parties 
may  render  expedient  and  proper. 

[This  order  was  affirmed  on  appeal.] 


JOHN  McTAVISH  AND  EMILY 
McTAVISH,    EXECUTRIX  OF 
CHARLES  CARROLL,  OF  CAR-  ,       _ 
ROLLTON, 

vs. 
WILLIAM  CARROLL. 

[APPLICATION  or  PAYMENTS.] 

THE  general  rule  upon  the  subject  of  appropriation  of  payments,  gives  to  the 
debtor,  in  the  first  place,  the  right  to  make  the  application,  and  then  upon 
his  omitting  so  to  do,  to  the  creditor. 

If  a  party  is  indebted  on  mortgage  and  simple  contract,  and  making  a  payment, 
neglects  to  apply  it,  the  law  will  apply  it  to  the  mortgage  or  bond,  as  most 
beneficial  to  the  debtor  ;  and  such  is  the  undoubted  rule  where  no  particular 
application  is  made  by  either  party. 

Payments  made  generally,  are  applied  in  extinguishment  of  debts  bearing  in- 
terest, where  there  were  others  due  the  same  creditor,  not  carrying  interest. 

If  a  party  is  indebted  on  several  accounts  and  makes  a  payment,  he  may  apply 
it  to  either  ;  if  he  does  not,  the  creditor  may  do  so,  and  if  neither  does,  the 
law  will  appropriate  it,  according  to  the  justice  of  the  case. 


McTAVISH  VS.  CARROLL.  161 

[In  this  case  certain  land  was  sold  under  a  decree  of  the 
court  to  satisfy  a  mortgage  debt ;  and  a  surplus  remaining  in 
court,  after  its  payment  in  full,  petitions  were  filed  by  various 
parties,  claiming  to  be  entitled  to  have  their  debts  paid  out  of 
the  residue  of  the  fund. 

The  question  decided  in  the  case,  the  facts  of  which  are 
fully  stated  by  the  Chancellor  in  his  opinion,  relates  to  the 
doctrine  of  the  appropriation  of  payments  :] 


THE  CHANCELLOR  : 

The  question  now  submitted  for  decision  has  reference  to  the 
distribution  of  the  fund  raised  by  the  sale  of  the  property,  under 
the  decree  of  the  22d  of  September,  1835. 

It  appears,  by  the  proceedings,  that  the  late  Charles  Carroll 
of  Carrollton,  in  the  years  1829  and  1830,  loaned  to  the  de- 
fendant, William  Carroll,  the  sum  of  $3500,  to  secure  the  re- 
payment of  which,  the  latter  assigned  to  the  former  a  land  office 
certificate,  for  a  tract  of  land  called  "Canal  and  Rail  Road," 
containing  upwards  of  ten  thousand  acres  ;  and  that,  to  secure 
the  repayment  of  a  further  loan  of  $500,  made  on  the  20th  of 
October,  1830,  the  defendant  assigned  to  the  said  Carroll  of 
Carrollton,  similar  certificates  of  four  tracts,  called  "Water 
Lot,"  "Villiers,"  "Webster,"  and  "Take  All." 

Upon  the  certificate  for  the  tract  called  "Canal  and  Rail 
Road,"  a  patent  was  obtained  by  the  complainant's  testator  on 
the  llth  of  March,  1830. 

Agreements  were  signed  by  the  said  testator,  dated  respec- 
tively, on  the  12th  of  January,  1830,  and  the  22d  of  April, 
1831,  showing  the  assignments  to  have  been  made  by  way  of 
security  merely,  and  constituting  them  in  effect,  mortgages, 
and  they  were  so  treated  in  the  bill  and  decree,  which  was 
passed  for  the  sale  of  the  property. 

The    trustee  appointed    for  the    purpose,  made   sale  of  the 

several  parcels  of  land  in  the  lump,  on  the  8th   of  July,  1846, 

for  the  gross  sum  of  $6950,  and  the  sale  has  been  duly  ratified 

and  confirmed  by  the  court ;  and  the  question  is,  how  shall  the 

14* 


HIGH  COURT  OF  CHANCERY. 

net  proceeds  of  this  sale,    be  apportioned    among  the  parties 
who  have  preferred  claims  to  it  ? 

Since  the  decree,  various  claimants  have  presented  them- 
selves, insisting  upon  their  right  to  participate  in,  or  have  ap- 
propriated to  their  use,  portions,  or  the  whole  of  the  surplus  of 
these  sales,  after  paying  the  mortgage  debt  of  the  complain- 
ants. 

On  the  10th  of  May,  1839,  Carroll,  the  mortgagor,  convey- 
ed to  Richard  Caton,  for  the  sum  of  $1250,  two  portions  of  the 
tract  called  "Canal  and  Rail  Road,"  designated  as  lots  number- 
ed 15  and  16,  and  containing,  the  one  273  acres,  and  the  other 
342  ;  and  the  grantee  in  this  deed  being  dead,  Josias  Penning- 
ton,  as  his  administrator,  and  his  heirs  at  law,  filed  their  peti- 
tion on  the  4th  of  February,  1847,  praying  that  a  portion  of 
said  proceeds  of  sale  may  be  paid  to  them. 

On  the  17th  of  June,  1842,  two  other  parts  of  the  same  tract 
were  conveyed  by  way  of  mortgage,  by  the  same  William  Car- 
roll, to  George  Neilson,  administrator  of  James  Neilson,  to 
secure  the  sum  of  $2000.  These  portions  contain  together  the 
quantity  of  374  acres. 

And  on  the  18th  of  July,  1843,  the  same  party  conveyed  to 
Jacob  Snively,  one  individual  moiety,  of  all  those  several  tracts 
in  trust  for  the  payment,  rateably,  of  certain  of  the  creditors  of 
the  grantor.  And  these  two  parties,  Neilson  and  Snively,  are 
also  claimants  of  portions  of  the  fund  raised  by  the  sales. 

In  addition  to  these,  J.  J.  Speed,  by  his  petition,  filed  on 
the  18th  instant,  insists  upon  his  right  to  have  a  part  of  the 
money  paid  to  him  upon  the  grounds  set  forth  in  his  petition. 

By  an  account  filed  by  the  complainants  on  the  31st  Decem- 
ber, 1846,  there  appears  to  have  been  other  transactions  than 
the  mortgage  between  Charles  Carroll  of  Carrollton  and  the  de- 
fendant, in  respect  of  which  the  defendant  became  indebted  to 
him  in  other  sums  of  money  than  those  secured  in  that 
way ;  and  the  same  account  shows  that  the  defendant  made 
payments  from  time  to  time  of  various  sums  of  money,  without 
any  application  being  made  by  either  party  of  such  payments, 
towards  the  satisfaction  of  either  of  the  debts. 


McTAVISH  VS.  CARROLL.  163 

In  the  account  marked  A,  stated  by  the  auditor,  these  sums 
thus  unappropriated  by  either  the  debtor  or  the  creditor,  are 
applied  to  the  satisfaction  in  part  of  the  mortgage  debt,  which 
the  Auditor  supposes,  for  the  reason  given  by  him,  to  be  the 
proper  application.  By  this  account,  there  remains  an  unap- 
propraited  balance  of  $2480  56,  after  paying  the  complainant's 
claim  ;  one  moiety  of  which  is  assigned  to  Jacob  Snively,  and 
the  other  to  the  defendant. 

In  account  B,  stated  according  to  the  views  of  the  complain- 
ants, the  residue  is  reduced  to  $1489  93,  which  is  assigned  to 
the  same  parties  in  like  proportions. 

Exceptions  have  been  filed  to  these  accounts  by  the  parties 
interested  ;  the  one  side,  insisting  upon  the  propriety  of  the 
application  of  the  payments  in  the  one  account,  and  others  in 
the  other. 

The  Chancellor  thinks,  that  the  appropriation  of  the  pay- 
ments made  by  the  Auditor  in  the  account  A,  is  the  proper  one, 
that  is,  to  the  payment  of  the  mortgage  debt,  as  ,being  most 
beneficial  to  the  debtor. 

The  general  rule  upon  the  subject  of  the  appropriation 
of  payments,  is  laid  down  by  the  Court  of  Appeals,  in  the  case 
of  Mitchell  vs.  Hall,  4  Gill  fy  Johns.,  301,  giving  the  right  to 
the  debtor,  in  the  first  place  to  make  the  application,  and  then 
upon  his  omitting  so  to  do,  to  the  creditor. 

In  this  case,  however,  there  was  no  appropriation  of  these 
payments  made  by  either  party,  and  the  question  is,,  how,  in  the 
absence  of  such  appropriation,  will  the  law  apply  them  ? 

It  was  said  by  the  general  court,  in  the  case  of  Gwinn  vs. 
Whittaker,  1  Harr.  fy  Johns.,  754,  that  if  a  party  is  indebted 
on  mortgage  and  simple  contract,  and  making  a  payment,  ne- 
glect to  apply  it,  the  law  will  apply  it  to  the  mortgage  or  bond, 
as  most  beneficial  to  the  debtor.  And  in  the  case  of  Dorsey 
vs.  Gassaway,  2  H.  fy  J.,  402,  412,  the  same  court  said,  that 
such  was  the  undoubted  rule,  where  no  particular  application, 
by  either  party  was  made.  There  was  an  appeal  in  this  last 
case,  and  the  judgment  of  the  general  court  was  affirmed  by 
the  appellate  court. 


164  HIGH  COURT  OF  CHANCERY. 

The  rule  that  payments  made  generally,  will  be  applied  in  a 
way  most  beneficial  to  the  debtor,  is  further  illustrated  by  the 
cases  in  which  such  payments  have  been  applied  in  extinguish- 
ment of  debts,  bearing  interest,  where  there  were  others  due 
the  same  creditor  not  carrying  interest.  Hayward  vs.  JLomax, 
1  Vern.,  24. 

In  this  case,  it  is  true,  that  it  is  not  very  important  to  the 
debtor,  whether  the  payments  are  applied  to  the  debts  secured 
by  the  mortgage,  or  to  those  which  are  not  so  secured,  as  the 
surplus  in  either  case  will  be  insufficient  to  pay  the  other 
claims  against  him. 

It  is,  however,  of  some  importance  to  the  other  creditors,  as 
the  surplus  applicable  to  the  payment  of  their  claims,  will  be 
diminished  or  enlarged,  as  the  one,  or  other  rule  is  adopted. 
The  rule,  as  laid  down  in  some  of  the  cases  is,  that  if  a  party 
is  indebted  on  several  accounts,  and  makes  a  payment,  he  may 
apply  it  to  either,  if  he  does  not,  the  creditor  may  do  so ;  and 
if  neither  does,  the  law  will  appropriate  it  according  to  the  jus- 
tice of  the  case.  United  States  vs.  Kirkpatrick,  9  Wheat., 
720  ;  Cremer  vs.  Higinson,  1  Mason,  323.  And  it  seems  to 
the  Chancellor,  that  the  justice  of  the  case,  in  view  of  the  in- 
terests of  third  persons,  as  well  as  a  proper  regard  to  the 
rights  of  the  debtor,  requires  that  the  payments  should  be  ap- 
plied to  the  satisfaction  of  the  mortgage  debt,  and  an  order  will 
be  passed  for  that  parpose. 

The  case  is  not  now  in  a  condition  to  enable  the  court  to 
make  a  final  disposition  of  the  surplus  among  the  various  con- 
tending creditors.  It  would  seem  that  the  surplus  should  be 
assigned  to  those  creditors  according  to  the  date  of  their  re- 
spective liens,  but  the  difficulty  arises  from  the  fact,  that  the 
different  deeds  and  mortgages  are  for  parcels  of  the  premises 
mortgaged  to  Carroll  of  Carrollton,  and  the  whole  being  sold  in 
a  lump,  it  is  not  easy  to  say  how  much  of  the  purchase  money 
should  be  awarded  to  the  several  parties.  The  case  will,  how- 
ever, be  sent  to  the  Auditor,  with  directions,  as  far  as  practica- 
ble, to  appropriate  the  surplus,  after  paying  the  mortgage  debt 
of  the  complainant,  to  the  satisfaction  of  the  claims  of  the  oth- 


McTAVISH  VS.  CARROLL.  165 

er  creditors ;  due  regard  being  had  to  the  dates  of  the  instru- 
ments under  which  they  respectively  claim,  and  the  extent  of 
property  conveyed  to  each  of  them  severally. 

The  Chancellor  is  also  of  opinion,  that  the  sum  which  may 
be  awarded  to  the  parties  mentioned  in  the  petition  of  Josias 
Pennington,  administrator  of  Richard  Caton,  and  others,  should 
be  awarded  to  the  heirs  at  law  of  said  Caton,  and  not  to  his 
administrator. 

[After  this  decision,  further  testimony  was  taken,  relative  to 
the  value  of  the  parcels  of  land  respectively  mortgaged  to  Neil- 
son,  and  sold  to  Caton,  as  compared  with  the  value  of  the 
whole  tract  covered  by  the  prior  mortgage  to  Charles  Carroll 
of  Carrollton.  The  parts  conveyed  to  Caton  contained  togeth- 
er six  hundred  and  fifteen  acres,  and  those  mortgaged  to  Neil- 
son  contained  three  hundred  and  seventy-four  acres  of  land. 
As  the  mortgage  debt  of  Carroll  of  Carrollton  was  a  lien  upon 
the  whole  tract,  and  Caton  and  Neilson  had  liens  upon  portions 
of  it  only,  the  question  was,  whether  the  lien  of  the  former 
should  be  thrown  upon  the  whole  fund,  and  the  two  latter  con- 
fined in  their  claims  to  so  much  of  the  residue  as  was  propor- 
tionate to  the  value  of  the  portions  covered  by  their  liens,  com- 
pared with  the  value  of  the  whole  tract  ?  or,  whether  the  mort- 
gage debt  of  said  Carroll  of  Carrollton  should  be  thrown,  in 
the  first  place,  upon  so  much  only  of  the  whole  tract  as  was 
not  embraced  in  these  two  subsequent  deeds,  and  if  that  was 
not  sufficient,  then  upon  these  two  portions  of  the  whole  tract ; 
and  thus  leave  the  whole  surplus  to  be  applied  proportionately 
to  the  claim  of  Caton  and  that  of  Neilson  ? 

Such  of  the  facts  as  are  necessary  to  explain  the  case,  and 
not  given  in  the  previous  report,  are  stated  by  the  Chancellor 
in  his  opinion.] 

THE  CHANCELLOR: 

This  case  standing  ready  for  further  directions  on  exceptions 
to  the  report  of  the  Auditor,  and  having  been  submitted  during 
the  sittings  of  the  term,  by  the  solicitor  of  George  Neilson,  ad- 


166  HIGH  COURT  OF  CHANCERY. 

ministrator  of  James  Neilson,  deceased,  a  creditor  and  mort- 
gagee of  a  portion  of  the  property  in  the  proceedings  mentioned, 
is  now,  according  to  the  rule,  laid  before  the  Chancellor  for  de- 
cision, upon  notes,  in  writing,  by  the  solicitors  of  the  parties. 

After  reading  the  notes,  and  examining  and  considering  the 
proceedings  in  the  cause,  I  have  come  to  the  conclusion,  that 
the  mortgage  debt  of  the  complainants,  it  being  the  oldest  in- 
cumbrance,  must  be  first  paid;  but,  that  this  shall  be  done  so 
as  to  inflict  as  little  injury  as  possible  upon  those  whose  claims 
stand  posterior  to  it  in  date,  and  that  to  accomplish  this  end, 
it  was  proper  to  adopt  the  course  pursued  by  the  Auditor,  as 
stated  in  his  report  of  the  13th  of  November  last.  That  is, 
that  the  mortgage  debt  of  the  complainants  should  be  so  cast 
upon  the  mortgaged  property,  as  without  injury  to  the  prior  in- 
cumbrance,  should  leave  the  residue  of  the  net  proceeds  of  sale 
to  satisfy  junior  incumbrances  and  subsequent  deeds  in  the  or- 
der of  their  priority. 

I  am,  therefore,  of  opinion,  that  as  the  mortgage  to  Neilson 
and  the  deed  to  Richard  Caton  are  anterior  in  point  of  time  to 
the  instruments  under  which  Joseph  J.  Speed  and  Jacob  Snive- 
ly  claim,  they  must  be  preferred  to  them  ;  and,  as  by  the  de- 
cree of  the  30th  of  October  last,  so  much  of  the  proceeds  of  the 
sales  as  Richard  Caton  should  appear  to  be  entitled  to,  were 
directed  to  be  applied  to  the  payment  of  his  debts,  such  appli- 
cation must  now  be  made. 

The  only  question  in  the  case,  which  remains,  and  which 
seems  to  present  any  difficulty,  respects  the  portions  of  the  fund 
to  be  applied  to  the  payment  of  the  mortgage  of  Neilson,  and 
to  the  creditors  of  Caton. 

The  property  embraced  in  the  mortgage  to  Neilson,  and  in 
the  sale  to  Caton,  consisting  of  lots  numbered  15,  16,  226  and 
145,  constitute  in  their  area  but  a  small  portion  of  the  entire 
tract  sold,  and  the  difficulty  results  from  the  fact,  that  the  en- 
tire tract  was  sold  in  one  mass  at  so  much  per  acre,  so  that 
nothing  appears  upon  the  face  of  the  proceedings  by  which  we 
can  determine  the  value  of  these  particular  lots,  relatively  to  the 
residue  of  the  whole  tract. 


McTAVISH  VS.  CARROLL.  167 

It  is  objected  by  the  counsel  of  one  of  the  parties  interested 
adversely  to  Neilson,  that  if  the  latter  thought  the  lots  mort- 
gaged to  him  possessed  any  peculiar  value,  he  should  have  re- 
quired them  to  be  sold  separately,  and  not  having  done  so,  he 
cannot  now  insist  upon  receiving  more  of  the  proceeds  of  sale 
than  is  attributable  to  the  quantity  of  land  contained  in  his 
mortgage. 

But  the  answer  to  this,  which  I  consider  sufficient,  is,  that 
neither  Neilson  nor  Caton  were  parties  to  the  cause  under  which 
the  property  was  sold  ;  and,  that  the  sale  was  made  under  a 
mortgage  prior  in  date  and  paramount  in  title  to  the  deed  un- 
der which  they  claimed. 

This  objection  then  being,  as  I  think,  untenable,  the  ques- 
tion resolves  itself  into  one  of  fact,  and  that,  of  course,  depends 
upon  the  evidence  taken  in  relation  to  it. 

In  the  Auditor's  report  of  November  last,  in  speaking  of  the 
evidence  of  the  defendant,  William  Carroll,  and  that  of  James  H. 
Stimpson,  the  only  witnesses  who  had  then  been  examined  upon 
this  point,  he  remarked,  that  their  testimony  was  so  completely  at 
variance  as  to  be  altogether  irreconcilable  ;  and,  he  submitted 
the  propriety  of  authorizing  the  parties  to  take  further  proof  to 
remove  the  difficulty.  An  order  was  subsequently  passed  for 
that  purpose,  and  upon  reading  the  depositions  taken  under  this 
last  order,  and  considering  it  together  with  the  proof  previous- 
ly on  file,  I  am  very  decidedly  of  opinion,  that  the  lots  in  ques- 
tion, numbered  15,  16,  145  and  229,  were  worth,  at  least,  as 
much  as  all  the  rest  of  the  property  comprehended  in  these  pro- 
ceedings ;  and,  therefore,  after  the  full  satisfaction  of  the  mort- 
gage to  the  late  Charles  Carroll  of  Carrollton,  the  surplus  pro- 
ceeds ot  sale  must  be  applied,  in  proper  proportions,  to  the  pay- 
ment of  the  mortgage  to  Neilson,  and  to  the  creditors  of  Rich- 
ard Caton. 

Wherefore,  it  is  ordered,  this  28th  of  January,  1850,  that 
this  case  be,  and  the  same  is  hereby,  referred  to  the  Auditor, 
with  directions  to  state  an  account  accordingly.  Exceptions 
of  the  parties  at  variance  with  this  order  are  overruled. 

[No  appeal  was  taken  from  either  of  the  orders  in  this  case.] 


168  HIGH  COURT  OF  CHANCERY. 


JOHN  H.  DUVALL  ET  AL.  ^ 

vs.  DECEMBER  TERM,  1847. 

JOHN  COALE.  ) 

[FRAUD.] 

A  PARTY  who  attempts  to  protect  himself  from  the  consequencesirf  an  engage- 
ment into  which  he  has  entered,  upon  the  plea,  that  he  has  been  imposed  upon, 
must  make  out  the  imposition  by  proof. 
/  Fraud  is  not  to  be  presumed,  and  though  it  may  not  be  necessary  to  prove  it  by 
direct  and  positive  testimony,  yet,  the  circumstances  upon  which  the  pre- 
sumption  of  its  existence  is  to  be  founded,  should  lead  plainly  and  directly, 
and  by  strong  implication,  to  that  conclusion. 

Deliberate  settlements  and  solemn  instruments  are  not  to  be  impeached  and 
overthrown  by  light  and  trivial  circumstances,  which,  at  most,  furnish  a 
foundation  for  ingenious  minds  to  speculate  upon,  and  to  weave  plausible 
theories  of  unfairness  in  the  transaction  with  which  they  are  associated. 

[John  Coale,  of  Howard  district,  having  been  indebted  to 
Beale  Duvall,  in  the  sum  of  $1187  55,  executed  to  him  a  bill 
of  sale  of  certain  personal  property,  dated  27th  November, 
1824,  to  secure  its  payment.  According  to  the  allegations  of 
the  bill,  the  debt  was,  on  the  8th  of  January,  1834,  reduced  to 
the  sum  of  $742  29  ;  and  on  the  28th  of  October,  following, 
Coale  mortgaged  certain  real  estate  in  Howard  district,  to  .Du- 
vall,  to  secure  the  payment  of  the  balance,  in  three  annual  in- 
stallments, with  interest ;  the  last  installment  being  due  on  the 
28th  October,  1837.  The  bill  also  stated,  that  said  Duvall, 
had  been  long  since  dead,  and  that  John  H.  Duvall  and  William 
B.  Duvall,  two  of  the  complainants,  were  his  administrators  ; 
that  Coale  had  made  but  two  small  payments  on  the  mortgage, 
one  of  $65,  on  the  27th  September,  1841,  and  the  other  of 
$214  49,  on  the  21st  February,  1842  ;  the  balance,  with  inter- 
est, being  still  due ;  and  that  the  mortgage  was  afterwards  as- 
signed by  said  administrators,  for  a  valuable  and  bona  fide  con- 
sideration, to  Thomas  John  Bowie,  the  other  complainant.  The 
defendant,  Coale,  admitted  in  his  answer,  that  he  had  signed  the 
mortgage  in  question  ;  but,  stated  that  he  knew  nothing  of  its 
contents,  save  as  they  were  afforded  him  by  Duvall,  who  pro- 


170  HIGH  COURT 


DUVALL.  171 


minds  to  speculate  upon,  andirs<from  the  evidence  to  have 
unfairness  in  the  transaction  wndant,s  witnesS)  who  was  aiso 
^    It  is  true,  it  is  shown  in  this 

/read  manuscript,  and  that,  thei^   a  party  designing  to  per- 

/  self  have  examined  and  understuld  not  readj  would  have  piaced 

I    1834,  which  was  the  basis  of    detection  and  exp0sure,  which 

October;    but,    then    it   is   miig   willingness  of  Duvall,  thus 

U*as  made  in  the  presence  of  ,hould  undergo  revision  and  ex- 
•ead  and  write,  and  who  seera^  transaction  from  the  appear- 
iuite  familiar  with  his  business^  insufficient  grounds,  the 

Looking  to  that  settlement,  ed  ^  throw  around  it 
papers  produced  by  the  defend^.  ^  mortgage  can  be  pro- 
extent  its  fairness  is  corroborat^  voif] .  nor  upon  collating  the 
also  of  the  vague  and  indefinit(duced  by  the  defendant,  and  in 
rehed  upon  to  show  that  the  d€Qf.  can  my  mind  be  brought  to 
credits  to  which  he  is  said  to  1^  ig  entitled  to  any  additionai 
sider  myself  warranted  in  sayin 

that  settlement.  But  supposin,^^  Qne  correction  to  be  made 
were  more  pregnant,  than  they,34)  andthat  ^  in  regard  tothe 
there  are  other  facts  appearing.  calculated  on  the  debt  secured 
to  repel  the  presumption  of  fraiovember?  1824. 

The  settlement  does  not  app^  inte'rest  was  charged  upon 
with  no  persons  present  but  thf  ents  applied,  first)  to  pay 

shown  by  the  proof,  in  the  pre.^  to  the  extinguishment  of 
both  read  and  write,  and  who  j^  the  account  was>  j  think> 
to  have  been  quite  familiar  witl  UpQn  examiningthe  mortgage, 
ties.  There  is,  besides,  anotlls  payable  by  instaiiraents,  and 
calculated  to  rebut  the  presumpe  paid  at  the  stipuiated  period, 
contemplated  by  Beale  Duvall.  fc>  and  not  on  the  entire  debt> 
The  settlement  m  which  the  d  when  ^  settlement  was  made 
mitted,  was  made  on  the  8th  oflole  debt>  and  appiying  no  part 
gage  only  charged  to  be  fraudt  the  reduction  of  the  principal, 
settlement,  was  not  executed  ur  wag  firgt  paid)  was  against  the 
upwards  of  nine  months  afterwseous 

During  all  this  interval  the  sihis  wag  the  resuh  of  inadver. 
tion  by  any  person  whom  the  d,eration  of  the  provisions  Of  the 
that  office  for  him,  Duvall  havin.  of  irapairing  the  invalidity  of 


170  HIGH  COURT  OP  CHANCERY. 

minds  to  speculate  upon,  and   to  weave    plausible  theories  of 

unfairness  in  the  transaction  with  which  they  are  associated. 

.     It  is  true,  it  is  shown  in  this  case,  that  the  defendant  cannot 

/  read  manuscript,  and  that,  therefore,  he  could    not  have  him- 

f  self  have  examined  and  understood  the    settlement  of  January, 

5    1834,  which  was  the  basis  of  the  mortgage    of  the  following 

[     October ;    but,    then    it   is   in    evidence,  that  that  settlement 

Uvas  made  in  the  presence  of  the  defendant,    who  could  both 
•ead  and  write,  and  who  seems,  from  his  proof,    to  have  been 
juite  familiar  with  his  business. 
Looking  to  that  settlement,  and  comparing  it  with  the  other 
papers  produced  by  the  defendant,  and  seeing  that  to  a  great 
extent  its  fairness  is  corroborated  by  those  papers  ;  and  in  view 
also  of  the  vague  and  indefinite  character  of  the  parol  evidence 
relied  upon  to  show  that  the  defendant  was  not  allowed  all   the 
credits  to  which  he  is  said  to  have  been  entitled,  I  do  not  con- 
sider myself  warranted  in  saying,  that    fraud  was  practiced  in 
that  settlement.     But  supposing  the  circumstances  of  suspicion 
were  more  pregnant,  than  they  present  themselves  to  my  mind, 
there  are  other  facts  appearing  in  the  case,  which  would  go  far 
to  repel  the  presumption  of  fraud. 

The  settlement  does  not  appear  to  have  been  made  in  private, 
with  no  persons  present  but  the  parties  themselves,  but,  as  is 
shown  by  the  proof,  in  the  presence  of  a  witness,  who  could 
both  read  and  write,  and  who  seems  from  his  own  declarations 
to  have  been  quite  familiar  with  the  dealings  between  the  par- 
ties. There  is,  besides,  another  circumstance,  which  is  well 
calculated  to  rebut  the  presumption  that  any  thing  unfair  was 
contemplated  by  Beale  Duvall. 

The  settlement  in  which  the  fraud  is  said  to  have  been  com- 
mitted, was  made  on  the  8th  of  January,  1834,  and  the  mort- 
gage only  charged  to  be  fraudulent,  because  founded  upon  that 
settlement,  was  not  executed  until  the  28th  October  following, 
upwards  of  nine  months  afterwards. 

During  all  this  interval  the  settlement  was  open  to  examina- 
tion by  any  person  whom  the  defendant  might  ask  to  perform 
that  office  for  him,  Duvall  having  given  him  a  copy  of  it  in  his 


COALE  VS.  DUVALL.  171 

own  hand-writing,  which  appears  -from  the  evidence  to  have 
been  well  known  to  the  defendant's  witness,  who  was  also 
present  when  it  was  made. 

It  seems  difficult  to  suppose  that  a  party  designing  to  per- 
petrate a  fraud  upon  one  who  could  not  read,  would  have  placed 
in  his  hands  the  ready  means  of  detection  and  exposure,  which 
are  here  exhibited.  Surely  this  willingness  of  Duvall,  thus 
manifested  that  the  settlement  should  undergo  revision  and  ex- 
amination, goes  far  to  relieve  the  transaction  from  the  appear- 
ance of  suspicion  which,  I  think  upon  insufficient  grounds,  the 
defendant's  counsel  has  attempted  to  throw  around  it. 

I  do  not,  therefore,  think  that  the  mortgage  can  be  pro- 
nounced fraudulent,  and  therefore  void  ;  nor  upon  collating  the 
settlement  with  the  receipts  produced  by  the  defendant,  and  in 
view  likewise  of  the  parol  proof,  can  my  mind  be  brought  to 
the  conclusion,  that  the  defendant  is  entitled  to  any  additional 
credits. 

There  is,  however,  in  my  opinion,  one  correction  to  be  made 
of  the  settlement  of  January,  1834,  and  that  is,  in  regard  to  the 
mode  in  which  the  interest  was  calculated  on  the  debt  secured 
by  the  mortgage  of  the  27th  November,  1824. 

According  to  the  settlement,  the  interest  was  charged  upon 
the  entire  debt,  and  the  several  payments  applied,  first,  to  pay 
the  interest  thus  charged,  and  then  to  the  extinguishment  of 
the  principal.  This  mode  of  stating  the  account  was,  I  think, 
wrong,  and  must  be  corrected.  Upon  examining  the  mortgage, 
it  will  be  found  that  the  debt  was  payable  by  installments,  and 
that  each  installment  was  to  be  paid  at  the  stipulated  period, 
with  interest  on  that  installment,  and  not  on  the  entire  debt, 
and,  therefore,  the  mode  adopted  when  the  settlement  was  made 
of  charging  interest  on  the  whole  debt,  and  applying  no  part 
of  the  respective  payments  to  the  reduction  of  the  principal, 
until  the  interest  on  the  whole  was  first  paid,  was  against  the 
terms  of  the  contract,  and  erroneous. 

But  as  I  am  fully  satisfied,  this  was  the  result  of  inadver- 
tence or  of  ignorance  of  the  operation  of  the  provisions  of  the 
deed,  it  cannot  have  the  effect  of  impairing  the  invalidity  of 


172  HIGH  COURT  OF  CHANCERY. 

the  last  mortgage,  except  to  the  amount  to  which  the  erroneous 
modes  of  calculation  may  have  swelled  the   sum  secured  by  it. 

I  do  not  think  the  last  exception  taken  by  the  defendant  to 
the  statement  of  the  auditor  can  be  maintained.  The  entire 
mortgaged  premises,  and  the  sum  intended  to  be  secured  by  the 
mortgage  are  assigned,  and  as  between  the  mortgagor  and  the 
assignee,  I  am  not  aware  of  any  principle  which  will  enable 
the  former  to  make  such  an  objection  to  the  payment  of  the  en- 
tire debt. 

It  is,  thereupon,  ordered,  this  24th  day  of  January,  1848,  that 
this  case  be,  and  the  same  is  hereby  again  referred  to  the  Audi- 
tor, with  directions  to  state  another  account  for  the  purpose  of 
ascertaining  the  amount  due  upon  the  mortgage  in  the  proceed- 
ings mentioned,  from  the  defendant  to  the  late  Beale  Duvall, 
executed  on  the  28th  of  October,  1834,  in  which  account  such 
corrections  shall  be  made  of  the  settlement,  marked  exhibit  No. 
2,  as  shall  make  it  conform  to  the  views  herein  expressed,  and 
the  amount  to  appearing  to  be  due  with  interest  thereon  from 
the  date  of  the  settlement,  to  the  date  of  the  mortgage,  shall  be 
taken  as  the  sum  secured  by  the  latter,  and  the  basis  of  the  ac- 
count now  to  be  stated.  All  exceptions  at  variance  with  this 
order  are  overruled. 

[No  appeal  was  taken  from  this  order.] 


JAMES  MALCOM,  PERMANENT 

TRUSTEE  OF  HENRY  KEENE 

}•      DECEMBER  TERM,  1847. 

WASHINGTON  HALL,  JR. 


[DEED   op  TRUST   FOR  BENEFIT   OF  CREDITORS — PREFERENCE — INSOLVENT 

SYSTEM.] 

IT  has  been  settled  by  the  highest  authority  in  this  state,  that  a  debtor  in  failing 
circumstances,  may  prefer  one  creditor  to  another,  by  a  transfer  of  his  prop- 
erty made  in  good  faith  •,  and  that,  in  similar  circumstances,  a  transfer  by  a 
debtor  of  his  whole  estate  to  trustees,  for  the  equal  benefit  of  his  creditors, 
is  free  from  objection. 


MALCOM  VS.  HALL.  173 

Yet,  if  such  payment  or  transfer  be  made  with  a  view,  or  under  an  expectation, 
of  taking  the  benefit  of  the  insolvent  laws,  and  with  an  intent  thereby  to  give 
an  undue  and  improper  preference  to  such  creditor,  then,  such  payment  and 

'  transfer  are  void  under  the  provisions  of  our  insolvent  system. 

The  distinctions  recognised  in  England  between  voluntary  and  involuntary  trans- 
fers, are  applicable  to  our  insolvent  system,  and  to  avoid  such  transfers,  for 
fraud  upon  that  system,  they  must  be  shown  to  be  voluntary,  as  well  as 
made  with  a  view  and  under  an  expectation  of  taking  the  benefit  of  the  in- 
solvent laws. 

The  act  of  1834,  ch.  293,  effected  two  alterations  in  the  system,  so  far  as  the 
city  and  county  of  Baltimore  are  concerned.  1st,  It  invalidated  the  trans- 
fer, whether  made  upon  request  or  not.  2d,  No  such  transfer  could  be  made 
in  favor  of  one  creditor  to  the  prejudice  of  the  rest,  if  the  debtor  making  it 
shall  have  had  no  reasonable  expectation  of  being  exempted  from  liability  or 
execution  for,  or  on  account  of,  his  debts,  without  applying  for  the  benefit  of 
the  insolvent  laws. 

Yet,  under  this  act,  there  must  be  found,  in  the  transfer  or  assignment,  an  in- 
tention to  prefer  one  creditor  over  another  ;  or,  notwithstanding,  the  party 
had  no  reasonable  expectation  of  escaping  a  recourse  to  the  insolvent  laws 
for  relief,  the  transfer  or  assignment  will  stand,  and  as  the  deed  in  this  case 

made  no  such  preference,  it  was  held  valid. 


[This  case  was  commenced  on  the  equity  side  of  Baltimore 
County  Court,  and  removed  to  this  court. 

The  bill  stated,  that  on  the  30th  April,  1847,  Henry  Keene, 
of  Baltimore  city,  being  in  insolvent  circumstances,  and  in  con- 
templation of  applying  for  the  benefit  of  the  insolvent  laws,  as- 
signed, by  deed  of  that  date,  all  his  property,  of  every  descrip- 
tion, to  the  defendant,  to  be  by  him  applied  to  the  payment  of 
the  insolvent's  debts  ;  first  deducting  therefrom  a  commission 
of  eight  per  cent,  for  himself,  and  his  expenses.  That,  on  the 
7th  of  May,  following,  Keene  applied  for,  and  obtained,  the 
benefit  of  the  insolvent  laws,  and  the  complainant  was  duly  ap- 
pointed his  permanent  trustee.  And,  that  the  defendant  has 
refused  to  deliver  said  property  to  the  complainant,  though  re- 
quested so  to  do.  The  bill  prayed,  that  a  decree  might  be 
passed,  setting  aside  the  deed  of  assignment,  as  fraudulent,  and 
requiring  the  property  to  be  delivered  to  the  complainant. 
The  answer  of  Hall,  denied  that  the  deed  was  made  in  contem- 
plation of  applying  for  the  benefit  of  the  insolvent  laws,  said 
application  only  having  been  made  in  consequence  of  a  refusal 
15* 


174  HIGH  COURT  OF  CHANCERY. 

of  the  complainant,  as  solicitor  of  one  of  his  creditors,  to  dis- 
pense with  special  bail  in  an  action  against  him.  The  defend- 
ant also  denied,  that  the  assignment  was  fraudulent  and  void, 
within  the  meaning  of  the  insolvent  laws  ;  and  stated,  that  im- 
mediately after  the  execution  thereof,  he  had  called  upon  the 
creditors  of  the  insolvent  to  inform  them  of  it,  and  that  they 
had  assented  thereto,  and  directed  him  to  proceed  in  the  execu- 
tion of  the  trust  reposed  in  him  by  it.  A  replication  was  put  in 
to  this  answer,  and  certain  papers  and  an  agreement  were  filed 
to  show  the  assignment  to  Hall,  the  application  of  Keene,  for 
the  benefit  of  the  insolvent  laws,  and  the  appointment  of  the 
trustee. 

The  case  was  subsequently  removed  to  this  court,  and 
argued  before  the  Chancellor,  who,  at  this  term  delivered  the 
following  opinion :] 

THE  CHANC  ELLOR: 

It  has  been  settled  by  the  highest  authority  in  this  state,  that 
a  debtor  in  failing  circumstances  may  prefer  one  creditor  to  an- 
other, by  a  transfer  of  his  property,  made  in  good  faith  ;  and 
that  in  similar  circumstances,  a  transfer  by  a  debtor  of  his 
whole  estate  to  trustees,  for  the  equal  benefit  of  his  creditors,  is 
free  from  objection.  State  of  Maryland  vs.  Bank  of  Maryland, 
6  G.  #/.,  205. 

Although,  however,  a  debtor  may  prefer  one  of  his  creditors, 
to  the  exclusion  of  the  rest,  either  by  payment,  or  a  bonafide 
transfer  of  his  property,  according  to  the  provisions  of  the  com- 
mon law,  yet,  in  this  state,  if  such  payment  or  transfer,  is 
made  with  a  view,  or  under  an  expectation  of  being  or  becom- 
ing an  insolvent  debtor — which  words  are  construed  to  mean, 
with  a  view  or  under  an  expectation  of  taking  the  benefit  of 
the  insolvent  law — and  with  an  intent  thereby  to  give  an  undue 
and  improper  preference  to  such  creditor,  then  such  payment 
and  transfer  are  obnoxious  to  the  provisions  of  our  insolvent 
system,  and  void,  the  acts  of  1812,  ch.  77,  sec.  1,  and  1816, 
ch.  221,  sec.  6,  (this  latter  act  relating  to  the  city  and  county 
of  Baltimore,)  declaring  such  to  be  the  law  of  this  state.  The 


MALCOM  VS.  HALL.  175 

construction  referred  to,  has  been  put  upon  those  acts  by  the 
Court  of  Appeals,  as  appears  by  the  case  of  Hickley  vs. 
Farmers  and  Merchants  Bank,  5  G.  fy  «/.,  377,  and  other 
cases. 

It  has  been  decided,  that  the  distinctions,  which  have  been 
recognised  in    England,   between    voluntary    and    involuntary 
transfers,  are  applicable  to  our  insolvent  system,  and  that,  con- 
sequently, when  a  transfer  by  a  debtor  to  his  creditor  is  sought 
to  be  avoided  as  a  fraud  upon  the  system,  it  must  be  shown, 
not  only  that  the  transfer  was  made  with  a  view,  and  under  an 
expectation  of  taking  the  benefit  of  the  insolvent  law,  but  that 
it  was  likewise  voluntary.     And  that   a  transfer  could  not  be 
considered  voluntary,  which  was  made  to  a  man  demanding 
payment.    Crawfords  and  Sellman  vs.  Taylor,  6  G.  £f  /.,  323. 
Such  was  the  state  of  the  law  in  Maryland,  when  the  act  of 
1834,  chap.  293,  was  passed,  being  a  supplement  to  the  insolv- 
ent laws,  relating  to  the  city    and  county   of  Baltimore,  the 
first  section  of  which  provides,  "that  all  conveyances,  assign- 
ments, sales,  deliveries,  payments,  conversions,  or  dispositions 
of  property  or  estate,  real,  personal  or  mixed,  debts,  rights,  or 
claims,  or    confessions  of  judgment,  that    shall  be   made,  or 
caused,  or  allowed  to  be  made,  whether  upon  request  or  other- 
wise, by  any  applicant,  to  or  in  favor,  or  with  a  view  to  the 
advantage  or  security  of,  and  with  intent  to  prefer  any  creditor 
or  creditors,  security  or  securities  of  such  applicant,  when  such 
applicant  shall  have  had  no  reasonable  expectation  of  being 
exempted  from  liability,  or  execution  for,  or  on  account  of  his 
debts,  without  applying  for  the  benefit  of  the  insolvent  laws  as 
aforesaid,  shall  be  deemed  within  the  meaning  and  effect  of  the 
sixth  section  of  the  act  to  which  this  is  a  supplement,  to  have 
been  made  with  a  view  or  under  an  expectation  on  the  part  of 
the  applicant,  of  being    or  becoming  an  insolvent  debtor,  and 
with    intent  thereby    to  give    an  undue   and  improper  prefer- 
ence. 

This  act  of  the  legislature  was  passed  shortly  after  the  de- 
cision of  the  Court  of  Appeals,  in  the  case  of  Crawfords  and  Sell- 
man vs.  Taylor,  and  it  is  by  no  means  a  violent  supposition, 


176  HIGH  COURT  OF  CHANCERY. 

that  one  of  the  objects  of  it,  was  to  bring  involuntary  transfers 
of  property,  by  a  debtor  to  his  creditor,  which  the  Court  of 
Appeals  had  declared  to  be  without,  within  the  provisions  of 
our  insolvent  system,  as  applicable  to  the  city  and  county  of 
Baltimore. 

This  law  effected  two  alterations  in  the  system,  so  far  as  the 
city  and  county  of  Baltimore  are  concerned.  In  the  first  place, 
it  invalidated  the  transfer  whetner  made  upon  request  or  not,  and 
thus  in  future  rendered  the  decision  in  the  case  of  Crawfords 
and  Sellman  vs.  Taylor  ineffectual  within  the  limits  of  the  city 
and  county  of  Baltimore.  And  in  the  next,  no  such  transfer 
could  be  made  in  favor  of  one  creditor  to  the  prejudice  of  the  rest, 
if  the  debtor  making  it  shall  have  had  no  reasonable  expecta- 
tion of  being  exempted  from  liability  or  execution  for  or  on  ac- 
count of  his  debts,  without  applying  for  the  benefit  of  the  insolvent 
laws.  Thus  dispensing  with  one  of  the  prerequisites  to  the 
successful  impeachment  of  such  a  preference — that  it  should 
have  been  made  with  a  view,  or  under  an  expectation  of  taking 
the  benefit  of  the  insolvent  laws.  Substituting  the  reasonable 
expectation  of  such  an  alternative,  for  the  direct  purpose  of 
taking  the  benefit  of  the  insolvent  laws. 

But  still,  under  the  act  of  1834,  the  transfer  or  assignment 
of  the  debtor  cannot  be  successfully  assailed,  unless  it  appears 
that  it  was  made  "with  a  view  to  the  advantage  or  security  of, 
and  with  intent  to  prefer  any  creditor  or  creditors,  security  or 
securities." 

There  must,  under  this  act,  as  it  seems  to  me,  be  found  in 
the  transfer  or  assignment,  an  intention  to  prefer  one  creditor 
or  security  over  another,  or  notwithstanding  the  party  may  have 
had  no  reasonable  expectation  of  escaping  a  recourse  to  the 
insolvent  laws  for  relief,  the  transfer  or  assignment  will  stand. 

[The  Chancellor  then  proceeded  to  state  the  facts  of  the  case, 
and  after  alluding  to  the  answer  of  the  defendant,  he  continues  :] 

Now,  although  this  answer,  as  it  does  not  speak  of  matters 
within  the  personal  knowledge  of  the  respondent,  is  not  entitled 


MALCOM  VS.  HALL.  177 

to  the  full  weight  of  an  answer  in  chancery  under  other  circum- 
stnnces,  it  is,  nevertheless,  quite  sufficient  to  put  the  complain- 
ant upon  the  proof  of  the  allegations  of  his  bill,  and  it  is  for 
him  to  show,  that  when  the  grantor  executed  this  deed,  he  had 
no  reasonable  expectation  of  being  exempted  from  liability, 
or  execution  for  or  on  account  of  his  debts,  without  applying  for 
the  benefit  of  the  insolvent  laws. 

It  is  true,  as  was  decided  by  the  Court  of  Appeals  in  the  case 
of  Dulany  vs.  Hoffman,  7  G.  Sf  ./.,  170,  the  intent,  in  cases  of 
this  description,  may  be  established  by  facts  and  circumstances, 
as  in  other  cases,  and  that  proximity  between  the  date  of  the 
assignment,  and  the  application  for  the  benefit  of  the  law,  is  a 
circumstance  worthy  of  consideration  in  connection  with  the 
other  facts  and  circumstances  in  the  case.  But  the  other  facts 
and  circumstances  of  this  case  are  so  essentially  different  from 
those  which  are  found  in  the  case  referred  to,  that  it  is  impos- 
sible to  suppose  the  court  would  have  come  to  the  same  conclu- 
sion in  this,  as  in  that.  Here,  the  creditors  are  all  put  on  a  foot- 
ing of  entire  equality  ;  there,  a  preference  was  given,  unsolicit- 
ed, to  a  few  favored  creditors,  at  the  expense  of  the  rest,  with- 
out any  attempt  whatever  to  conciliate  or  adjust  their  claims 
against  them.  It  was  with  reference  to  one  party  thus  volun- 
tarily preferring  one  creditor  to  the  other,  that  the  Court  of  Ap- 
peals say,  he  could  have  had  no  reasonable  expectation  of  being 
exempted  from  liability,  on  account  of  debts  due  the  injured 
creditors,  except  by  an  application  for  the  benefit  of  the  insolv- 
ent laws. 

If,  therefore,  the  decision  of  this  case  depended  upon  the  ex- 
istence of  such  expectations — that  is,  if  the  existence  of  such 
an  expectation  on  the  part  of  the  grantor  in  this  deed  would 
render  it  invalid,  I  would  still  be  unwilling  to  set  it  aside  ;  be- 
cause, looking  to  the  provisions  of  the  deed,  and  seeing  their 
justice,  and  the  good  reason  which  the  grantor  may  reasonably 
have  entertained,  that  his  creditors  would  acquiesce  in  it,  I 
should  have  been  strongly  inclined  to  think,  that  he  did  expect 
exemption  from  their  claims  against  him,  without  having  re- 
course to  the  insolvent  laws  for  relief.  But  as  I  have  already 


|78  HIGH  COURT  OF  CHANCERY. 

stated,  according  to  my  construction  of  the  act  of  1834,  even 
such  an  expectation  on  the  part  of  the  grantor,  would  not  viti- 
ate the  deed,  unless  it  likewise  preferred  one  creditor  to  the 
others,  and  as  this  deed  makes  no  such  preference,  I  am  of 
opinion,  the  complainant  cannot  have  relief  against  it,  and  that 
his  bill  must  be  dismissed. 

[No  appeal  was  taken  from  this  decree.] 


PEARSON  CLARK     ^ 

vs.  v     DECEMBER  TERM,  1847. 

LEVERING  ET  AL.  3 

[MORTGAGE— ASSIGNMENT  OF  MORTGAGE  DEBT.] 

A  BILL  of  sale,  though  absolute  in  its  terms,  is,  in  equity,  considered  as  a  mort- 
gage wherever  the  object  is  to  secure  the  payment  of  a  debt,  and  not  to  trans- 
fer the  title  absolutely  to  the  party  to  whom  the  conveyance  is  made. 

Whoever  may  be  the  holder  of  the  debt  intended  to  be  secured  by  the  mortgage, 
will  be  considered,  in  equity,  as  the  owner  of  the  mortgage  itself. 

The  debt  and  the  mortgage  are  so  inseparably  united,  the  one  being,  in  truth, 
appurtenant  to  the  other,  that  a  separate  and  independent  alienation  of  them 
cannot  be  made. 

[In  February,  1846,  Pearson  Clark,  the  complainant,  pur- 
chased of  William  Applegarth,  a  schooner,  called  the  "Emily 
Ann,"  for  the  sura  of  $2100,  and  gave  in  payment,  an  old  ves- 
sel valued  at  $500,  and  three  drafts  in  favor  of  the  vendor, 
drawn  by  said  Clark,  and  accepted  by  the  firm  of  Whittington 
&  Snyder  for  his  accommodation.  To  indemnify  the  said 
firm  against  any  loss  by  reason  of  their  acceptances,  the 
schooner  was  conveyed  to  them  by  a  bill  of  sale  from  Apple- 
garth,  with  the  understanding  that  they  were  to  convey  it  to 
Clark,  on  payment  of  the  draft  by  him.  Clark  failed  to  make 
any  payments  on  these  drafts,  other  than  a  small  one  of  about 
a  hundred  dollars ;  and  the  residue  of  the  first  two,  except 
$350  was  paid  by  the  acceptors.  For  this  balance  of  $350, 


CLARK  VS.  LEVERING.  179 

a  new  acceptance  was  given  by  said  Whittington  &  Snyder,  of 
a  draft  of  John  W.  Fowler  in  favor  of  Clark,  and  by  him  en- 
dorsed to  the  firm  of  B.  Deford  &  Co.  Whittington  &  Snyder 
afterwards  failed  in  business  ;  and  Frederick  A.  Levering  and 
John  C.  Bridges  having  become  their  assignees,  claimed  to  hold 
the  schooner  exclusively  for  the  benefit  of  the  general  creditors 
of  their  insolvents,  and  advertised  it  for  sale.  The  complain- 
ant filed  his  bill  against  them  for  an  injunction,  and  prayed 
that  the  vessel  might  be  sold  under  the  direction  of  the  court ; 
and  the  proceeds,  after  payment  of  the  purchase  money,  assign- 
ed to  him.  A  sale  was  subsequently  made  by  agreement,  and 
the  case  referred  to  the  Auditor,  who  applied  the  proceeds, 
(after  deducting  the  costs)  proportionally,  to  the  payment  of 
the  unsatisfied  draft  held  by  Applegarth ;  of  the  one  held  by 
Deford  &  Co.  ;  and  of  the  claim  of  the  defendants  on  account 
of  the  payments  made  by  their  insolvents,  (the  proceeds  being 
insufficient  to  pay  them  all  in  full,)  Applegarth,  and  Deford  & 
Webb,  excepted  to  this  account,  because  their  claims  were  not 
allowed  in  full,  instead  of  being  placed  on  an  equality  with 
those  of  the  defendants.  Proof  was  offered  at  the  same  time 
to  show  that  the  draft  held  by  Deford  &  Webb,  constituted  one 
of  the  claims  against  the  schooner  Emily  Ann.  The  Auditor 
having  stated  another  account  dated  3d  December,  1847,  un- 
der the  instructions  of  the  complainant's  solicitor,  allowing  said 
claims  in  full,  the  case  came  before  the  Chancellor,  on  the 
question  of  its  ratification.] 

THE  CHANCELLOR: 

There  can  be  no  doubt,  that  the  bill  of  sale,  though  absolute 
in  its  terms,  is  in  this  court  to  be  considered  as  a  mortgage ; 
the  object  being  to  secure  the  payment  of  a  debt,  and  not  to 
transfer  the  title  absolutely  to  the  parties  to  whom  the  convey- 
ance was  made.  Hicks  vs.  Hicks,  5  G.  fy  /.,  75  ;  Dougherty 
vs.  McColgan,  6  ibid.,  275. 

And  it  seems  to  me  there  can  be  as  little  doubt,  that  the 
debt  intended  to  be  secured,  was  that  due  the  vendor  of  the 
vessel,  and  for  which  the  bills  were  given  ;  and  that  the  holders 


180  HIGH  COURT  OF  CHANCERY. 

of  those  bills  must  consequently,  in  a  court  of  equity,  be  regard- 
ed as  the  mortgagees.  The  principle  settled  by  the  authorities 
appears  to  be  this  :  that  whoever  may  be  the  holder  of  the  debt 
intended  to  be  secured  by  the  mortgage,  will  be  considered  in 
equity  as  the  owner  of  the  mortgage  itself;  that  the  debt  can- 
not reside  in  one  person,  and  the  pledge  in  another ;  the  former 
(the  debt)  being  the  principal,  and  the  latter  the  accessory;  and 
that,  consequently,  in  whatsoever  hands  the  debt  is  found,  in 
the  same  hands  will  the  mortgage  also  be  found ;  that  the  debt 
and  the  mortgage  are  so  inseparably  united,  the  one  being  in 
truth  appurtenant  to  the  other,  that  a  separate  and  independent 
alienation  of  them  cannot  be  made.  Jackson  vs.  Blodget,  5 
Cowan,  202 ;  Green  vs.  Hart,  1  Johns.  Rep.,  580 ;  Jackson 
vs.  Hart,  3  Johns'1  Cases,  322  ;  Pratt  vs.  Vanwick's  ex'rs,  6  G. 
$  J.,  495. 

It  has  been  decided  in  Massachusetts,  that  where  a  negotia- 
ble note  secured  by  mortgage,  was  negotiated  without  assign- 
ment of  the  mortgage,  notwithstanding  such  separation  of  the 
note  from  the  mortgage,  the  latter  remained  in  force,  and  the 
mortgagee  became  a  trustee  for  the  holder  of  the  note.  Crane 
vs.  March,  4  Pick.,  131. 

But,  it  is  said  that  Whittington  &  Snyder  having  accepted 
these  bills  solely  for  the  accommodation  of  the  complainant, 
and  having  made  payments  on  account  of  them  out  of  their 
own  moneys,  justice  requires  that  they  should  at  least  be  put 
on  a  footing  of  equality  with  the  holders  of  the  bills,  and  be 
paid  rateably  with  them,  out  of  the  proceeds  of  sales,  those  pro- 
ceeds being  insufficient  to  pay  the  whole  sum. 

The  effect  of  this  would  be,  to  put  the  general  creditors  of 
Whittington  &  Snyder,  represented  by  their  assignees,  upon 
an  equal  footing  with  the  holders  of  the  bills. 

But,  why  should  this  be  so  ?  It  is  true,  these  parties  did  ac- 
cept these  bills  for  the  accommodation  of  the  complainant, 
Clark  ;  but  it  is  equally  true,  they  did  mean  to  put  themselves, 
and  did  put  themselves,  between  the  holders  of  the  bills  and 
loss.  In  truth,  with  reference  to  the  holders  of  these  bills, 
Whittington  &  Snyder  as  the  acceptors  became  the  principal 


CLARK  VS.  LEVERING. 

debtors,  holding  in  their  hands  as  security  for  the  debt,  and 
their  indemnity,  the  mortgage  upon  the  vessel. 

With  what  propriety,  then,  can  they  or  their  assignees,  repre- 
senting their  general  creditors,  say  that  the  holders  of  these  bills, 
for  whose  security  the  arrangement  was  made,  shall  participate 
with  them  in  the  loss  resulting  from  a  sale  of  the  vessel  for  less 
than  the  amount  which  the  complainant  stipulated  to  pay  for 
her.  Though  Whittington  &  Snyder  were  to  be  indemnified 
for  their  risk  in  accepting  the  bills,  they  certainly  were  to  in- 
demnify the  holders  of  them  ;  and  one  of  the  instruments  of  in- 
demnity was  the  mortgage  upon  the  vessel,  executed  to  them 
by  the  vendor  Applegarth. 

Suppose  Whittington  &  Snyder  had  made  no  payment  on 
the  bills,  but  had  other  claims  against  the  drawer ;  and  the 
contest  was  between  their  assignees,  representing  their  general 
creditors,  and  the  holders  ;  could  there  be  a  doubt  in  that  case, 
that  the  proceeds  of  the  sales  would  be  awarded  to  the  holders 
of  the  bills  ?  But  why  so  ?  why  simply  and  exclusively  because 
the  mortgage  to  Whittington  &  Snyder  was  for  their  benefit, 
as  the  holders  of  the  claims  intended  to  be  secured  by  it.  But 
if  the  court  in  the  case  supposed,  would  award  the  proceeds  to 
the  parties  holding  the  bills,  in  preference  to  the  general  credi- 
tors of  Whittington  &  Snyder,  why  shall  they  not  have  the 
same  preference,  notwithstanding  the  partial  payment  made  by 
those  persons  ?  They  are,  it  is  true,  in  respect  of  such  partial 
payment,  creditors  of  the  fund ;  but  their  claim  upon  it,  or  to 
be  indemnified  out  of  it,  is  subordinate  to  the  claim  of  the  hold- 
ers of  the  bills,  and  must  give  way  until  they  are  satisfied  in 
full.  Such  being  my  opinion,  I  shall  pass  an  order  ratifying 
the  account  of  the  Auditor,  of  the  3d  instant,  which  is  stated 
upon  this  view  of  the  relative  rights  of  the  parties. 

.    [No  appeal  was  taken  from  this  order.] 


VOL.  i — 16 


182  HIGH  COURT  OF  CHANCERY. 

CHRISTOPHER  LITTLE      ^ 

vs.  >      DECEMBER  TERM,  1847. 

JOHN  R.  PRICE  ET  AL.      ) 

[EFFECT  OF  AN  INJUNCTION  ON  PROCEEDINGS  AT  LAW — LIMITATIONS.] 

THE  object  of  an  injunction  to  stay  proceedings  at  law,  either  before  or  after 
judgment,  is  to  prevent  the  party  against  whom  it  issues,  from  availing  him- 
self of  an  unfair  advantage,  resulting  from  accident,  mistake,  fraud,  or  other- 
wise, and  which  would,  therefore,  be  against  conscience. 

If  such  unfair  advantage  has  been  already  obtained,  by  proceeding  to  judgment, 
the  court  will  in  like  manner  control  the  judgment,  and  restore  the  party  to 
his  original  rights. 

This  can  only  be  done  by  depriving  his  adversary  of  every  advantage,  which 
the  judgment  thus  improperly  obtained,  gives  him,  and  cannot  be  limited 
merely,  to  restraining  him  from  proceeding  upon  it  at  law. 

Hence,  an  injunction  commanding  and  enjoining  the  complainant,  to  cease 
from  all  proceedings  on  his  judgment  recovered  at  law,  was  held  to  operate 
to  restrain  him  from  proceeding  in  equity. 

It  is  well  settled  by  the  Maryland  decisions,  that  chancery  will  never  interfere 
with  judgments  at  law,  where  the  party's  own  default,  or  neglect,  has  made 
an  application  to  the  latter  tribunal  necessary. 

The  running  of  the  act  of  limitations  is  suspended  by  an  injunction 

[The  facts  in  this  case  are  fully  stated  in  the  Chancellor's 
opinion.] 

THE  CHANCELLOR: 

This  is  a  creditor's  bill  filed  against  the  devisees  and  others, 
representing,  or  supposed  to  represent,  the  real  and  personal 
estate  of  Hyland  Price,  deceased,  and  prays  for  a  sale  of  the 
real  estate  left  by  him,  upon  an  allegation  of  the  insufficiency 
of  the  personalty. 

The  bill  was  filed  on  the  21st  of  August,  1846,  and  alleges, 
that  in  the  year  1822,  the  complainant  obtained  a  judgment  of 
condemnation  against  the  said  Price,  upon  an  attachment  which 
he  had  sued  out  on  a  judgment  in  his  favor  against  one  George 
Davidson,  rendered  in  1819 — that  he  had  subsequently  issued 
a  scire  facias  on  the  said  judgment  of  condemnation,  and  ob- 
tained a  fiat  executio  at  April  term,  1829,  of  the  Cecil  County 
Court,  with  a  stay  of  execution  until  January,  1830 — that  the 


LITTLE  VS.  PRICE.  183 

complainant  would  have  proceeded  to  execute  his  judgment  at 
law,  but  was  restrained  by  an  injunction  granted  by  this  court, 
upon  a  bill  filed  by  Price,  the  defendant^  which  was  not  dis- 
solved until  the  conclusion  of  the  March  term,  1846 — that  Price 
having  died,  leaving  a  will  sufficient  to  pass  real  estate,  and 
his  personal  estate  in  the  hands  of  his  executors  being  insuf- 
ficient to  pay  his  debts,  a  sale  of  the  real,  in  the  hands  of  his 
devisees,  is  prayed  for. 

The  answer  of  such  of  the  defendants  as  are  of  age,  to  this 
bill,  insists,  that  the  judgment  of  the  condemnation  against  Hy- 
land  Price  in  1822,  was  the  result  of  an  agreement  between  him 
and  the  complainant,  by  which  it  was  stipulated  that  payment 
thereof  would  not  be  enforced  unless  such  payment  would  ope- 
rate as  a  discharge  of  a  bond  which  Price,  the  defendant,  had 
given  to  one  Philemon  C.  Blake,  for  his  interest  in  certain  real 
estate,  upon  which  the  said  Davidson  alleged  he  had  a  mort- 
gage— that  Davidson  had  in  fact  no  claim  to  the  mortgage  in 
his  individual  capacity  ;  the  same,  if  in  his  possession  at  all, 
being  held  by  him  as  administrator  of  his  father  James  David- 
son, to  whom  it  had  been  given  by  Blake — that  the  bond  which 
Hyland  Price  had  given  Blake,  had  passed  into  the  hands  of 
other  parties,  by  whom,  under  the  circumstances  stated  in  the 
answer,  a  decree  by  the  court   was  obtained  for  the   payment 
thereof;  and  the  answer  begs  leave,  at  the  trial  of  this  case,  to 
refer  to  the  proceedings  in  the  injunction  cause,  and  also  the 
cause  in  which  the  said  decree  was  passed. 

The  injunction  bill  by  Hyland  Price,  was  filed  on  the  14th 
of  January,  1830.  He  died  in  the  year  1842,  and  his  execu- 
tors having  become  parties,  the  answer  of  Little  was  filed  on 
the  10th  of  December,  1845,  and  a  motion  then  made  by  him 
to  dissolve  the  injunction,  which  was  accordingly  dissolved  by 
the  Chancellor's  order  of  the  27th  of  April,  1846  ;  and  on  the= 
5th  of  June  following,  the  complainants  in  that  cause  prayed  an 
appeal  to  the  Court  of  Appeals,  where  it  is  still  depending. 

The  prayer  of  this  bill  thus  filed  by  Price,  is  for  an  injunc- 
tion to  be  directed  to  the  said  Little,  commanding  and  enjoin- 
ing him  to  cease  from  all  proceedings  on  the  judgment  afore- 


184  HIGH   COURT  OF  CHANCERY. 

said,  and  for  general  relief,  and  the  order  of  the  Chancellor  was 
in  conformity  with  the  prayer. 

Under  these  circumstances  the  cause,  originating  upon  this 
creditor's  bill,  is  brought  on  for  hearing,  and  the  solicitors  of  the 
parties  have  been  heard. 

The  complainant,  Little,  founds  his  right  to>a  decree  for  the 
sale  of  the  real  estate  of  Hyland  Price  exclusively  upon  the 
judgment  of  condemnation  of  1822,  and  the  fiat  executio  of 
1829.  Upon  these,  and  upon  the  alleged  insufficiency  of  the 
personal  estate,  he  insists  that  he  is  entitled  to  a  decree  for  the 
sale  of  the  realty.  He  denies  emphatically  the  right  of  the  de- 
fendants to  look  behind  these  judgments,  by  which  he  main- 
tains that  Hyland  Price,  and  all  who  represent  him,  are  con- 
cluded. 

It  is  not  the  purpose  of  the  court,  at  this  time,  to  intimate 
any  opinion  upon  the  merits  of  this  case,  or  to  express  in  any 
way  the  conclusions  to  which  the  Chancellor  may  come,  upon 
full  consideration  of  the  circumstances  under  which  those  judg- 
ments were  rendered  ;  because,  according  to  the  view  which  I 
now  take,  it  would  be  premature  at  this  time  to  pass  a  decree 
in  this  cause. 

The  counsel  for  the  complainant  argued  that  the  injunction 
granted  upon  the  bill  filed  by  Price  in  1830,  and  which  was  not 
dissolved  until  1846,  and  upon  which  an  appeal  is  now  depend- 
ing in  the  Court  of  Appeals,  did  not  operate  to  restrain  this 
complainant,  Little,  from  proceeding  in  equity,  and,  that  the 
whole  effect  of  the  prohibition  was  to  prevent  proceedings  at 
law  upon  the  judgment.  This,  however,  is  not  the  view  which 
I  take  of  the  subject,  and  as  the  bill  in  this  case  was  not  filed 
until  after  the  dissolution  of  the  injunction,  though  Price  died  in 
1842,  it  may  be  inferred  it  was  not  the  view  at  one  time  taken 
by  the  complainant  himself,  as  it  is  difficult  to  assign  a  rea- 
son for  the  delay  in  filing  the  bill  until  after  the  dissolution  of 
the  injunction,  unless  it  was  thought  that  its  continuance  was 
a  legal  or  equitable  impediment  to  such  a  proceeding. 

But,  independently  of  any  inference  to  be  drawn  from  the  con- 
duct of  the  complainant,  and  in  the  absence  of  any  direct  au- 


LITTLE  VS.  PRICE.  185 

thority  upon  the  question,  it  seems  very  clear,  that  the  effect 
of  the  injunction  must  be  much  more  extensive  than  is  conced- 
ed to  it  by  the  complainant's  solicitor. 

The  object  of  an  injunction  to  stay  proceedings  at  law,  either  A 
before  or  after  judgment,  is  to  prevent  the  party  against  whom  \ 
it  issues,  from  availing  himself  of  an  unfair  advantage,  resulting 
from  accident,  mistake,  fraud,  or  otherwise,  and  which  would 
therefore,  be  against  conscience.  In  such  cases  the  court  will 
interfere,  and  restrain  him  from  using  the  advantage  which  he 
has  improperly  gained — and,  as  Mr.  Justice  Story  says,  "if  any 
such  unfair  advantage  has  been  already  obtained,  by  proceed- 
ing to  judgment,  the  court  will  in  like  manner  control  the  judg- 
ment, and  restore  the  injured  party  to  his  original  rights." 
The  judgment,  then,  is  not  only  to  be  controlled,  but  the  party 
against  whom  it  was  unfairly  obtained  is  to  be  restored  to  his 
original  rights,  which  can  only  be  done  by  depriving  his  adver- 
sary of  every  advantage  which  the  judgment  thus  improperly 
obtained  gives  him,  and  cannot  be  limited  merely  to  restraining 
him  from  proceeding  upon  it  at  law.  2  Story's  Equity,  sees. 
885,  886,  887. 

Besides,  it  would,  indeed,  be  singular,  if  a  court  of  equity 
should  interfere  by  injunction,  to  prevent  a  party  from  obtain- 
ing at  law,  the  fruits  of  a  judgment  unconscientiously  obtained, 
and  sjbould  at  the  same  time  permit  that  same  party,  by  a  pro- 
ceeding in  equity,  to  get  the  benefit  of  the  condemned  judg- 
ment. Suppose,  for  example,  in  this  case,  the  Court  of  Chan- 
cery upon  the  injunction  bill,  or  the  Court  of  Appeals  upon  ap- 
peal to  that  tribunal,  should  ultimately  decide  that  the  judg- 
ment obtained  by  Little  against  Price  was  obtained  under  cir- 
cumstances which  would  render  it  inequitable  in  him  to  enforce, 
and  upon  that  ground,  should  decree  a  perpetual  injunction ; 
would  it  not  be  strange,  if  the  same  court  upon  the  application 
of  the  plaintiff  in  the  judgment,  to  give  him  the  advantage  of 
it,  should  so  decree.  The  court  would  be  in  one  breath  say- 
ing, this  judgment  was  unfairly  obtained,  and  its  extraordinary 
power  would  be  exerted  to  prevent  the  court  in  which  it  was 
rendered  from  enforcing  it,  and  in  the  next,  that  the  party  who 
16* 


186  HIGH  COURT  OF  CHANCERY. 

comes  here  for  relief,  upon  the  footing  of  that  very  judgment, 
has  shown  himself  entitled  to  equitable  relief.  It  seems  to  me 
impossible  that  a  doctrine  fraught  with  such  consequences, 
can  be  maintained ;  and,  therefore,  to  avoid  inconsistent  and 
antagonistic  decrees  in  relation  to  the  same  matter,  I  am  of 
opinion  that  this  case  cannot  now  be  decided. 

It  has  been  said,  that  the  court  cannot,  as  this  case  stands, 
look  at  the  proceedings  in  the  injunction  case ;  but  seeing  that 
both  the  bill  and  the  answer  refer  to  them — the  former  for  the 
purpose  of  accounting  for  the  failure  of  the  plaintiff  to  execute 
his  judgment  at  law,  and  the  latter  praying  that  the  defendant 
may  be  allowed  to  refer  to  them  at  the  trial  of  this  cause — it 
seems  to  me  that  I  cannot  shut  my  eyes  to  their  existence  ;  and 
upon  looking  at  those  proceedings,  and  seeing  that  a  decree 
may  be  passed  by  the  Court  of  Appeals,  upon  the  appeal,  which 
might  render  a  decree  in  favor  of  the  complainant  in  this  case 
unavailable,  I  cannot  think  it  would  be  proper  now  to  proceed 
to  a  final  decree. 

[The  order  of  the  Chancellor  of  the  27th  of  April,  1846,  dis- 
solving the  injunction,  having  been  affirmed  by  the  Court  of 
Appeals  at  June  term,  1848,  and  the  difficulty  suggested  in  his 
foregoing  remarks  consequently  removed,  the  Chancellor,  in 
his  opinion  of  the  28th  July,  1848,  said  :] 

An  effort  has  been  made  to  impeach  the  judgment  of  the  com- 
plainant, but,  I  think,  without  success. 

Though  the  judgment  of  condemnation  of  1825  was  by  de- 
fault, that  of  fiat  executio  of  1829  was  by  confession,  and  I  am 
unable  to  see  anything  in  the  circumstances,  as  shown  by  the 
proceedings  in  this  case,  or  in  the  case  referred  to  in  it,  which 
should  induce  a  court  of  equity  to  refuse  to  give  effect  to  it. 

The  reluctance  with  which  courts  of  equity  interfere  with 
judgments  at  law  is  conspicuous  in  the  adjudged  cases,  and  it 
is  believed  to  be  well  settled  by  the  Maryland  decisions,  that 
chancery  never  will  so  interfere,  where  the  parties  own  default, 
or  neglect,  has  made  an  application  to  the  latter  tribunal  neces- 


JONES   VS.   HANCOCK.  187 

sary.  Carr  vs.  Gott,  6  Gill  &  Johns.,  312  ;  Fowler  vs.  Lee,  10 
ibid.,  358. 

I  do  not  think  there  is  anything  in  the  delay  in  bringing  the 
case  growing  out  of  the  bill  filed  by  Price  in  1830,  to  a  close, 
which  should  now  cause  this  court  to  treat  the  judgment  as  an 
invalid  security,  as  it  is  quite  obvious  that  Price  might  himself 
have  long  since  brought  that  case  to  an  end. 

I  think  the  executors  of  the  deceased  are  properly  before  the 
court  as  such,  and  that  there  is  evidence  of  the  sufficiency  of 
the  personal  estate. 

The  running  of  the  act  of  limitations  was  suspended  by  the 
injunction  from  1840  to  1846,  and  therefore  the  plea  of  the  stat- 
ute is  no  defence. 

My  impression,  therefore,  is,  that  here  is  a  valid  unsatisfied 
judgment,  and  that  the  personal  estate  of  the  deceased  debtor 
is  insufficient  to  pay  him  ;  and  not  seeing  in  the  objection  urged 
by  the  defendant's  counsel  any  reason  why  the  court  should  not 
pass  a  decree  for  the  sale  of  the  real  estate  left  by  the  debtor, 
a  decree  will  be  signed  accordingly.  But,  for  the  sake  of  con- 
venience, and  to  avoid  conflict  and  confusion,  this  case  will  be 
consolidated  with  the  case  upon  the  mortgage  referred  to  in 
the  proceedings. 

[No  appeal  was  taken  from  this  decree.] 


SAMUEL  JONES,  JR. 

vs.  ^-     DECEMBER  TERM,  1847. 

ROBERT  B.  HANCOCK  ET  AL. 

[MECHANICS'  UEN.] 

THE  law  relating  to  the  lien  of  mechanics  and  others  upon  buildings,  only  pre- 
fers such  lien  te  every  other  lien  or  incumbrance,  which  attached  upon  the 
building,  subsequent  to  the  commencement  of  the  same. 

If  there  be  liens  on  the  property,  prior  to  the  commencement  of  the  building 
upon  which  the  work  is  done,  or  for  which  the  materials  are  found,  the  lien 
for  work  and  materials  must  be  postponed  to  such  prior  incumbrance. 


188          HIGH  COURT  OF  CHANCERY. 

The  act  of  1845,  ch.  287,  sec.  4,  gives  no  right  to  a  party  to  enforce  this  lien 

upon  the  proceeds  of  sales  of  machinery 
Though  a  party  having  a  lien  on  a  building  for  work  and  materials,  may  come 

intoacourt  of  law  or  equity  for  his  shareofthe  proceeds  ofasale, made  under 

its  authority,  no  such  right  is  given  when  such  proceeds  arise  from  the  sale  of 

machinery. 


[This  case  was  argued  on  exceptions  to  the  Auditor's  report, 
filed  on  the  13th  July,  1847.  The  claims  of  the  exceptants 
under  the  lien  law  of  1838,  chap.'  205,  and  the  various  supple- 
ments thereto,  especially  those  of  1845,  chapters  176  and  289, 
having  been  rejected  by  the  Auditor,  the  question  brought 
before  the  court  was,  how  far  this  law  with  its  supplements  ap- 
plied to  the  case  of  the  exceptants.  The  facts  of  the  case  are 
sufficiently  disclosed  in  the  opinion  of  the  Chancellor:] 

THE  CHANCELLOR  : 

The  exceptions  to  the  report  of  the  Auditor,  were  submitted 
to  the  Chancellor  for  his  decision  by  an  agreement  of  the 
parties,  filed  on  the  8th  of  the  present  month,  (December,  1847.) 
In  pursuance  of  that  agreement,  the  papers  were  laid  before  me 
on  the  13th,  and  on  the  14th  upon  an  examination  of  the  acts  of 
assembly,  I  came  to  the  conclusion,  that  the  claims  of  Wells  & 
Miller,  and  Edward  G.  Dorsey,  excepting  creditors,  could  not 
be  supported  as  liens,  upon  the  proceeds  of  the  sale  made  by 
the  trustee  in  this  case,  and  ratified  the  Auditor's  report,  by 
which  they  were  excluded. 

After  this  decision  was  made,  though  on  the  same  day, 
written  arguments  in  behalf  of  these  parties,  were  received  by 
the  register,  who  deemed  it  his  duty,  again  to  lay  the  case  be- 
fore me  ;  and,  in  so  doing,  he  was  quite  right ;  though  it  must 
be  apparent  to  all  concerned,  that  it  would  be  far  better,  and 
much  more  satisfactory,  if  cases  were  withheld  from  the  Chan- 
cellor, until  they  are  actually  ready  for  decision,  and  if  argu- 
ments are  to  be  made,  they  should  be  made  before  the  judg- 
ment of  the  court  is  asked  for. 

I  consider  it  proper,  now,  however,  to  state  briefly  the 
grounds  of  my  opinion. 


JONES  VS.  HANCOCK.  189 

The  property  sold  by  the  trustee  in  this  case,  consisted  of  a 
certain  lot  and  buildings  in  the  city  of  Baltimore,  and  the  ma- 
chinery and  fixtures  attached  to  and  connected  therewith, 
which  had  been  mortgaged  by  Hancock  and  Mann,  to  Dawson 
and  Norwood,  by  three  several  deeds  of  mortgage,  the  first  of 
which  was  executed  on  the  31st  day  of  July,  1845, 

The  trustee,  whose  sale  was  made  on  the  15th  February, 
1847,  sold  the  property  in  the  lump,  for  the  round  sum  of 
twenty- thousand  five  hundred  dollars,  and  the  sale  was  finally 
ratified  and  confirmed  on  the  14th  June,  1847,  after  public  no- 
tice duly  given,  and  without  exception. 

The  proceeds  are  insufficient  by  many  thousand  dollars,  to 
pay  the  vendor's  lien  for  the  balance  of  the  purchase  money  of 
the  lot,  and  the  amount  due  on  the  mortgages  to  Dawson  and 
Norwood,  which  were  assigned  to  Samuel  Jones,  Jr.,  and  by 
him  to  Wynn  and  Ross. 

These  creditors,  Wells  and  Miller,  and  Edward  G.  Dorsey, 
claim  to  have  a  lien  upon  the  proceeds  of  sales,  upon  the 
ground,  that  the  sums  due  them,  are  for  work  done,  and  mate- 
rials found,  for  machinery  put  up  in  the  factory,  which  was 
erected  upon  the  premises,  and  they  rely  upon  the  4th  section 
of  the  act  of  1845,  chapter  176,  being  a  supplement  to  the  act 
of  1838,  chapter  205,  relating  to  the  lien  of  mechanics,  and 
others  upon  buildings. 

The  first  section  of  this  act  declares,  "that  the  work  done, 
and  materials  furnished  for,  or  about  the  erection  or  construc- 
tion of  any  building,"  &c.,  "shall  only  be  preferred  to  every 
other  lien  or  incumbrance,  which  attached  upon  such  building 
subsequent  to  the  commencement  of  the  same,  and  the  ground 
covered  by,  and  necessary  for  the  ordinary  and  useful  purposes 
of  such  building.  But,  if  there  be  liens  on  the  property  prior 
to  the  commencement  of  the  building  upon  which  the  work  is 
done,  or  for  which  the  materials  are  found,  it  follows  that  the 
lien,  if  for  the  work  and  materials,  must  be  postponed  to  such 
prior  incumbrance. 

And  the  4th  section,  relied  upon  by  these  creditors,  says, 
"that  every  machine  hereafter  to  be  erected,  constructed,  or  re- 


190  HIGH  COURT  OF  CHANCERY. 

paired,  within  the  city  of  Baltimore,  shall  be  subject  to  a  lien 
in  like  manner,  as  buildings  are  made  subject  under  the  provi- 
sions of  this,  and  the  original  act." 

Now,  if  the  property  upon  which  the  machinery  in  question 
was  constructed,  was  subject  to  a  lien  or  incumbrance,  prior 
in  date,  to  the  commencement  of  the  buildings  in  which  the 
machinery  was  placed,  why  then  the  parties  doing  the  work 
upon,  and  finding  the  materials  for  such  machinery,  are  defer- 
red by  the  law  to  the  holder  of  the  prior  lien  or  incumbrance. 

In  this  case,  the  first  of  the  mortgages  to  Dawson  and  Nor- 
wood, is  dated  on  the  31st  of  July,  1845,  and  the  presumption, 
therefore,  is  not  a  violent  one,  that  it  attached  upon  the  prop- 
erty, before  the  buildings,  within  which  was  the  machinery 
supplied  by  Wells  and  Miller,  were  commenced. 

But  again,  the  attempt  here  is  to  enforce  the  lien,  not  upon 
the  machinery  itself,  but  upon  the  proceeds  of  sales  made  by 
the  trustee,  when,  as  appears  by  his  report,  the  whole  property, 
including  lot,  buildings  and  machinery,  were  sold  in  mass,  for 
one  round  sum,  and  there  is  no  evidence,  whatever,  to  show, 
what  the  machinery  was  worth  at  the  period  of  sale,  or  how 
much  it  increased  the  price  of  the  property. 

The  court,  therefore,  has  no  guide  by  which  the  money  could 
be  apportioned,  and  if  it  undertook  to  do  so,  must  rely  upon 
mere  random  conjecture. 

There  is,  moreover,  another  difficulty.  The  right  to  come  in 
upon  the  proceeds  of  sales  made  under  the  decree  of  this  court, 
is  founded  upon  the  4th  section  of  the  act  of  1845,  chap.  287> 
being  an  additional  supplement  to  the  lien  law.  But  this  sec- 
tion gives  no  right  so  to  come  in  upon  the  proceeds  of  sales  of 
machinery.  The  language  is,  "that  in  all  cases  of  sales  made 
under  a  judicial  process,"  &c.,  "of  any  building  to  which  a 
lien  for  work  done  or  materials  found  attaches,  the  proceeds  of 
such  sale  shall  be  applied  and  distributed,  in  such  manner  and 
form,  as  shall  be  just  and  equitable,  and  as  shall  apportion  the 
same  among  the  claimants  thereto,  according  to  their  respective 
rights  and  priorities." 

It  would  seem,  therefore,  that  though  a  party  having  a  lien 


JONES  AND  WHITE  VS.  BROWN.  191 

on  a  building  for  work  or  materials,  may  come  into  a  court 
of  law  or  equity,  for  his  share  of  the  proceeds  of  a  sale  made 
under  its  authority,  no  such  right  is  given,  when  such  proceeds 
arise  from  the  sale  of  machinery. 

Upon  the  whole,  I  am  of  opinion,  that  as  against  the  lien  of 
the  vendor,  and  the  mortgage,  these  parties  cannot  be  allowed 
to  prevail  in  this  court  upon  these  proceeds  of  sale. 

[An  appeal  was  taken  from  this  order  but  is  not  yet  decided.] 


JONES  AND  WHITE      } 

vs-  DECEMBER  TERM,  1847. 

LLOYD    BROWN  ET  AL.  \ 


[HUSBAND  AND  WIFE — MARRIAGE  SETTLEMENT.] 

BY  a  marriage  settlement  the  property  of  the  wife  was  conveyed  to  trustees, 
for  the  benefit  of  the  wife,  during  coverture,  free  from  the  control,  and  not  lia- 
ble to  the  debts  of  her  husband,  with  power  to  the  wife  to  dispose  of  the  same, 
either  by  last  will  and  testament,  in  writing,  or  by  any  other  writing  signed 
by  her  hand  in  presence  of  two  witnesses.  The  wife  died  without  mak- 
ing any  disposition  whatever  of  the  property.  It  was  HELD — 

That  the  contract  did  nothing  more  than  suspend  the  marital  rights  of  the 
husband  during  the  life  of  the  wife  ;  and,  upon  her  death,  the  property  re- 
mained precisely  in  the  same  condition  it  would  have  been  in  if  no  such  pow- 
er of  appointment  had  been  created ;  and,  consequently,  the  rights  of  the  hus- 
band revived  upon  her  death. 

When  it  is  intended  in  a  marriage  settlement  to  exclude  the  rights  of  the  hus- 
band to  the  personal  property  of  the  wife,  in  the  event  of  his  surviving  her, 
and  in  default  of  her  appointment,  an  express  provision  to  that  effect  should  be 
inserted  in  the  deed. 

When  the  settlement  makes  no  disposition  of  the  property  in  the  event  of  the 
wife's  death,  and  provides  only  for  her  dominion  over  it  during  coverture, 
the  right  of  the  husband,  as  survivor,  is  a  fixed  and  stable  right,  over  which 
the  court  has  no  control,  and  of  which  he  cannot  be  divested. 

[In  the  month  of  November,  1841,  a  marriage  being  at  that 
time  in  contemplation,  between  Drusilla  Elliott  and  Lloyd 
Brown,  the  latter,  for  the  purpose  of  securing  to  the  former  the 


192  HIGH  COURT  OF  CHANCERY. 

undisturbed  enjoyment  of  the  property,  of  which  she  was  then 
seized  and  possessed,  or  to  which  she  might  be  entitled  in  ex- 
pectancy, entered  into  a  contract  with  her,  and  the  complainants 
as  trustees,  not  to  intermeddle  with  her  property  in  any  manner, 
but  to  permit  her  to  appropriate  it  to  her  own  use,  or  to  such 
other  use  or  uses,  as  she,  in  the  manner  specified  in  the  contract, 
might  appoint.  The  marriage  was  consummated  between  the 
said  Brown  and  Elliott,  shortly  after  the  execution  of  this  con- 
tract, and  the  latter  having  subsequently  become  entitled,  under 
the  will  of  her  uncle,  to  certain  real  and  personal  property,  the 
greater  portion  thereof  came  into  the  hands  of  trustees,  who 
permitted  the  said  Brown  and  wife,  to  hold  the  same  for  several 
years ;  at  the  expiration  of  which  time,  the  wife  died,  leaving 
two  children,  the  issue  of  said  marriage ;  without  having  made 
any  disposition  of  the  trust  property  ;  and  leaving  unpaid,  sev- 
eral debts  contracted  by  her,  and  for  which  her  creditors  contend- 
ed, that  her  separate  estate  was  responsible.  After  her  death, 
her  husband  continued  to  retain  possession  of  the  property, 
contending  that,  as  no  appointment  in  pursuance  of  the  power 
furnished  by  the  contract,  had  been  made  by  his  wife,  the  con- 
tract could  no  longer  operate  to  debar  him  of  his  marital  rights. 
The  bill  was  filed  by  the  trustees,  to  obtain  the  direction  of  the 
court,  as  to  theirproper  course  in  regard  to  the  husband's  claim, 
and  to  ascertain,  whether  the  trust  had  expired,  and  if  the  cred- 
itors of  the  deceased  could  consequently  proceed  at  law  to  re- 
cover the  said  debts.] 

THE  CHANCELLOR  : 

It  appears  to  me,  that  the  antenuptial  contract  in  this  case, 
does  nothing  more,  than  suspend  the  marital  rights  of  the  hus- 
band, during  the  life  of  the  wife,  with  power  reserved  to  her,  to 
dispose  of  the  property  by  will,  in  writing,  or  by  any  other 
writing  whatever,  executed  in  the  mode  prescribed  by  the  in- 
strument, and  the  wife  having  failed  to  make  such  testamentary, 
or  other  disposition,  the  rights  of  the  husband  are  revived  by 
her  death. 

There  is  nothing  in  this  contract,  which  in  terms,  or  by  ne- 


JONES   AND  WHITE  VS.   BROWN.  J93 

cessary  implication,  excludes  the  right  of  the  husband,  in  the 
event  of  his  surviving  the  wife,  and  in  default  of  her  exerting 
the  power  which  was  reserved  to  her,  to  dispose  of  the  property 
by  will,  or  by  a  writing  in  her  lifetime,  executed  in  the  mode 
pointed  out. 

The  language  of  the  settlement  is,  that  "notwithstanding  the 
marriage  shall  take  effect,  all  the  rents  and  profits  of  the   real 
and  personal  estate,  of  which  Drusilla   Elliott,  is  now  seized, 
and  possessed,  or  entitled  to  in  expectancy,  which  shall  become 
due,  and  payable  to  her  the  said  Drusilla  Elliott,  and,  also,  the 
interest  thereon  due  or  to  become  due,  also  the  reversion  and 
reversions  of  the  said  real  and  personal  estate,  shall  be  account- 
ed, reckoned  and  taken,  as  the  separate  and  distinct,  real  and 
personal  estate  of,  and  from  the  estate  of  him,  the  said  Lloyd 
Brown,  and  be  in  nowise  liable  or  subject  to  him,  or  to  the  pay- 
ment of  any  of  his  debts,  but  with  the  profits  or  increase,  that 
shall  thereafter  be  gotten,  gained,  or  made,  of  the  same,  be  or- 
dered, disposed,  and  employed,  to  such  person,  or  persons,  to, 
and  for   such  use,  and  uses,  intents  and  purposes,  and  in  such 
manner,  and  form,  as  is  hereinafter  mentioned  and  declared  ; 
that  is  to  say,  that  the  ready  money  arising  or  accruing  out  of 
the  said  separate  and  distinct,  real  and  personal  estate,  of  which 
the  said  Drusilla  Elliott,  is  now  seized  and  possessed,  or  which 
she  may  be  entitled  to,  in   expectancy,  shall  from  time  to  time 
be  placed  out  at  interest,  on  such  securities,  as  the  said  Drusilla 
shall  think  fit ;  which  securities,  during  the  .coverture,  shall  be 
taken   and  made,  in  the  names  of  the  said  Henry  Jones,  Jr., 
and  William  Q.  White,  or  the  survivor  of  them,  or  in  the  name 
or  names  of  such  other  person,  or  persons,  as  the  said  Drusilla, 
shall  order  and  appoint,  in  trust  for  her,  said  Drusilla  Elliott"-^ 
"  "and  that,  all  the  separate  and    distinct  estate,  as  before  des- 
cribed,   declared  and  allotted,  for  the  said  Drusilla  Elliott,  as 
aforesaid,  and  the  produce,  and  increase  thereof  shall  be  had, 
taken,  held,  possessed,  and  enjoyed,  by  such  person,  orpersons, 
and  for  such  use  and  uses,  as  the  said  Drusilla  Elliott,  shall,  at 
any  time  or  times,  hereafter,  during  her  life,  limit,  devise,  order 
or  dispose  of  the  same,  or  any  part  thereof,  either  by  her  last 
VOL.  i — 17 


194  HIGH  COURT  OF  CHANCERY. 

will  and  testament,  in  writing,  or  by  any  other  writing  what- 
soever, signed  with  her  hand,  in  the  presence  of  two  or  more 
creditable  witnesses." 

There  can  be  no  doubt,  that  these  provisions  in  the  deed, 
freed  the  property  and  its  proceeds,  from  the  control  of  the  hus- 
band, and  from  responsibility  for  his  debts,  during  the  coverture, 
and  that  the  wife  might  at  any  time,  during  her  life,  in  the  way 
designated,  have  appointed  the  uses  to  which  it  should  be  ap- 
plied after  her  death.  She  did  not,  however,  exercise  this  pow- 
er, and  it  follows,  therefore,  as  I  think,  that  upon  her  death  the 
property  remained  precisely  in  the  condition  it  would  have  been 
in,  if  no  such  power  of  appointment  had  been  created  ;  and  the 
marital  rights  of  the  husband,  being  only  suspended  during  the 
coverture,  at  once  attach  upon  it. 

In  the  case  of  Steward  vs.  Steward,  7  Johns.  Ch.  Rep., 
245-6,  the  Chancellor  says,  "I  believe  it  has  been  the  inva- 
riable practice,  and  that  the  uniform  course  of  the  precedents 
will  show  it,  that  when  it  is  intended  in  a  marriage  settlement, 
to  exclude  the  rights  of  the  husband  to  the  personal  property 
of  the  wife,  in  the  event  of  his  surviving  her,  and  in  default  of 
her  appointment,  an  express  provision  to  that  effect  is  inserted 
in  the  deed" — and  in  the  same  case,  the  Chancellor  also  ob- 
served, "when  the  settlement  makes  no  disposition  of  the  prop- 
erty in  the  event  of  the  wife's  death,  and  provides  only  for  her 
dominion  over  it  during  coverture,  the  right  of  the  husband, 
as  survivor  is  a  fixed  and  stable  right,  over  which  the  court  has 
no  control,  and  of  which  he  cannot  be  divested. 

The  deed  of  settlement  which  was  under  examination  in  that 
case,  was  substantially,  in  many  of  its  provisions,  like  the  pres- 
ent, and  the  decree  was  in  favor  of  the  right  of  the  husband  ; 
the  wife  having  died  without  exercising  the  power  of  appoint- 
ment. 

In  the  case  of  Ward  et  ux.  vs.  Thompson,  6  Gill  $  Johns., 
349,  the  doctrine  of  the  case  of  Stewart  vs.  Stewart,  was  fully 
confirmed,  though  the  court  made  a  decision  adverse  to  the 
right  of  the  husband,  because  by  the  deed  he  did  not  make  a 
mere  temporary  surrender  of  his  marital  rights,  but  in  the  Ian- 


JONES  AND  WHITE  VS.  BROWN.  195 

guage  of  the  Court  of  Appeals,  "abandoned  them  forever." 
Upon  examining  the  settlement  in  Ward  and  Thompson,  it  will 
be  found,  that  the  husband  agreed  that,  all  the  property  men- 
tioned in  it  should  "be  under  and  subject  to  the  exclusive,  and 
entire  management  and  control  of  the  said  Ann  W.  Menger, 
(the  intended  wife,)  her  heirs,  executors,  administrators  or  as- 
signs," "and  the  said  Ann  W.  Mengers  her  heirs,  executors,  ad- 
ministrators orassigns,  to  receive  and  enjoy  the  rents,  issues  and 
profits  thereof,"  without  the  interference  in  any  manner  of  the 
said  Robert  Thompson"  (the  intended  husband.)  By  the  ex- 
press terms,  therefore,  of  that  deed,  there  could  be  no  doubt,  that 
the  husband  not  only  meant  to  surrender  his  marital  rights  dur- 
ing the  coverture,  but  that  he  intended  to  surrender  them  to 
the  heirs  and  representatives  of  the  wife,  as  well  as  to  the  wife 
herself.  And  it  was  upon  this  express  ground,  that  the  Court  of 
Appeals  based  their  decision  against  him,  and  in  favor  of  her 
representatives. 

It  is  true,  there  are  in  the  deed  now  under  consideration, 
some  provisions,  which  do  look  to  a  continuance  of  the  trust 
beyond  the  life  of  the  wife ;  but  these  provisions  have  regard 
merely  to  the  change  of  investments,  and  do  not  in  any  way 
alter  the  uses  to  which  the  investments  shall  be  held.  The 
words  being,  "that  the  new  securities,  &c.  ;  shall  go  and  remain 
upon  the  same  trusts  and  for  the  same  intents  and  purposes,  as 
the  original  stocks,"  &c. ; — and  these  original  stocks,  as  we  have 
seen,  were,  during  the  coverture,  to  be  taken  and  made  in  the 
names  of  the  trustees,  or  the  survivor  of  them,  and  with  all  the 
estate  of  the  wife,  to  be  subject  to  her  appointment  by  will,  or 
deed,  executed  in  the  presence  of  two  witnesses. 

This  provision  in  the  deed  is  certainly  not  very  intelligible, 
and  not  easily  reconcilable  with  other  portions  of  the  instrument, 
and  cannot,  therefore,  have  the  effect,  of  destroying  that  fixed 
and  stable  right  of  the  husband,  which  Chancellor  Kent  says, 
can  only  be  divested  by  an  express  provision. 

[No  appeal  was  taken  from  this  decision.] 


196  HIGH  COURT  OF  CHANCERY. 


FREEBORN  G.  WATERS 

vs.  J>     MARCH  TERM,  1848. 

REBECCA    WATERS  ET  AL.. 


[WILL,  CONSTRUCTION  OF TRUSTEE  AND  CETERIS  QUE  TRUST.] 

A  TESTATOR,  after  disposing  of  certain  portions  of  his  estate,  devised  all  the 
residue  of  his  property  to  the  complainant,  in  trust,  to  hold  the  income,  rents 
and  profits  of  one-third  part  of  said  residue  for  the  use  of  his  grandson, 
the  defendant,  during  his  life  ;  such  income,  &c.,  to  be  paid  to  him,  from 
time  to  time,  as  they  might  accrue,  and  after  his  death  to  his  children,  in  fee  ; 
and  failing  children,  to  other  grandchildren  to  whom  the  remaining  two-thirds 
were  in  like  manner  devised.  At  the  time  of  the  testator's  death,  the  grand- 
son was  indebted  to  him  in  a  large  sum  of  money  ;  but,  it  appearing  that  the 
testator  did  not  mean  to  regard  him  as  his  debtor  in  respect  thereof,  it  was 
HELD — 

That,  to  enforce  the  payment  of  this  debt  out  of  the  defendant's  share  of  this 
income  and  profits,  would  defeat  the  clear  intention  of  the  testator  to  provide 
his  grandson  a  competent  support. 

That  it  was  the  duty  of  the  complainant,  the  trustee,  to  retain  the  amount  of  a 
loss,  occasioned  by  the  failure  of  the  defendant,  to  comply  with  the  term? 
upon  which  he  purchased  a  part  of  the  trust  estate,  out  of  the  income  of  said 
trust  estate,  payable  to  the  defendant. 


[The  late  Charles  Waters,  died  on  the  12th  May,  1S46, 
leaving  a  last  will  and  testament,  whereby,  after  sundry  dis- 
positions of  a  portion  of  his  estate,  he  devised  all  the  residue 
thereof,  to  the  complainant,  in  trust,  to  hold  the  income  inter- 
est, rents  and  profits,  of  one-third  part  of  said  residue,  for  the 
use  of  his  grandson,  the  defendant,  Charles  A.  Waters,  during 
his  life  such  income,  &c.,  to  be  paid  to  him  from  time  to  time, 
as  they  might  accrue  ;  and  after  his  death,  to  his  children  in 
fee,  and  failing  children,  to  other  grandchildren,  to  whom  the 
remaining  two-thirds  were  in  like  manner  devised.  Certain 
disputes  arising  amongst  the  devisees  of  deceased,  a  bill  was 
filed  in  this  court  by  the  complainant,  Tor  the  adjustment  of 
their  differences.  A  petition  was  subsequently  filed  by  him,  in 
the  cause,  stating  that  the  devisee,  Charles  A.  Waters,  was  in- 
debted to  the  testator,  in  his  lifetime,  in  a  large  sum  of  money, 
for  which  his  share  of  the  estate  ought  to  be  liable ;  that  he 


WATERS  VS.  WATERS.  197 

had  possessed  himself  of  certain  negroes,  and  other  personal 
property  of  the  deceased,  claiming  the  same  under  a  gift  from 
him ;  and,  was  also  in  possession  of  a  tract  of  land  in  Balti- 
more county,  belonging  to  the  testator's  estate,  which  he  re- 
fused to  deliver  to  the  petitioner,  although,  by  a  decree  of  the 
Chancellor,  passed  in  January,  1848,  in  a  cause  between  the 
said  Charles  A.  Waters,  complainant,  and  Charles  Howard, 
and  others,  defendants,  it  was  declared,  that  the  said  Charles 
A.  Waters,  had  no  title  to  said  real  and  personal  property,  and 
that  although  an  appeal  was  taken  from  the  decree  by  said 
Waters,  he  had  failed  to  give  bond  for  the  prosecution  thereof; 
and  contended,  that  it  would  be  better  for  all  parties,  to  permit 
him  to  retain  possession  of  the  property,  and  make  his  share 
of  the  estate  in  the  hands  of  the  trustee,  responsible  for  the 
prosecution  of  the  appeal.  The  petitioner  further  stated,  that, 
at  a  sale  made  by  him  as  trustee,  the  said  Waters,  became  a 
purchaser  of  a  part  of  the  testator's  estate,  but  he  refusing  to 
comply  with  terms  of  sale,  the  same  was  resold  at  a  consider- 
able loss,  with  which  the  share  of  said  Waters,  in  the  estate  of 
the  deceased,  was  properly  chargeable.  The  object  of  the 
petition,  was  to  obtain  the  directions  of  the  court,  as  to  the 
manner  in  which  the  trustee  should  act  under  the  circum- 
stances. An  answer  was  put  in  to  the  petition,  and  same 
testimony  taken  in  relation  thereto  ;  and  the  cause  having  been 
heard  at  this  term,  the  Chancellor  delivered  the  following 
opinion  :] 

THE  CHANCELLOR  : 

Upon  considering  the  petition,  filed  by  Freeborn  G.  Waters, 
in  this  case,  on  the  20th  of  March  last,  and  the  answer  thereto, 
and  the  other  proceedings  in  the  cause,  and  after  hearing  the 
counsel,  my  opinion  is,  that  the  share  of  the  income  and  profits 
of  the  trust  estate,  in  the  hands  of  the  petitioner,  to  which 
under  the  will  of  the  testator,  Charles  Waters,  his  grandson, 
Charles  A.  Waters  is  entitled,  are  not  chargeable  with  the 
claims  against  the  said  Charles  A.  Waters,  which  are  stated  to 
have  become  due  to  the  testator  in  his  lifetime — my  opinion 
17* 


198  HIGH  COURT  OF  CHANCERY. 

upon  this  point,  is  founded  upon  the  conviction,  looking  to 
all  the  proceedings  and  evidence  in  the  cause,  that  the  testator 
did  not  mean  to  regard  him  as  his  debtor  in  respect  of  those 
claims,  and  that  to  enforce  them,  in  the  only  way  in  which 
they  can  be  enforced,  and  in  the  mode  the  petition  proposed, 
by  appropriating  his  share  of  the  income  and  profits  to  their 
payment,  would  defeat  the  clear  intention  of  the  testator  to  pro- 
vide his  grandson  a  competent  support. 

But,  with  regard  to  the  claim  mentioned  in  the  petition, 
growing  out  of  the  failure  of  the  said  Charles  A.  Waters,  to 
to  comply  with  the  terms,  upon  which  he  purchased  a  portion 
of  the  estate  sold  by  the  trustee,  Freeborn  G.  Waters,  and  the 
loss  upon  a  resale  thereof,  I  think  the  said  Charles  A.  Waters, 
is  liable  to  the  trust  estate,  and  that  it  is  the  duty  of  the  said 
trustee,  to  retain  the  amount  of  the  said  loss,  when  ascertained 
out  of  the  income  of  the  trust  estate  payable  to  the  said  Charles 
A.  Waters. 

I  am  also  of  opinion,  that  the  said  Charles  A.  Waters  is 
chargeable  with  the  rents,  hires,  and  profits,  of  the  real  and 
personal  estate,  in  the  proceedings  mentioned,  in  the  case  of 
the  said  Charles  A.  Waters,  against  Charles  Howard  and  wife, 
and  others,  and  in  which  this  court  passed  a  decree  on  the  28th 
of  January  last ;  and  for  any  waste  or  deterioration  of  said 
estate,  caused  by  the  negligence  or  misconduct,  of  the  said 
Charles  A.  Waters,  whilst  the  same  has  been  in  his  possession, 
since  the  death  of  the  said  testator,  if  any  such  waste  or  de- 
terioration shall  be  proved. 

This  opinion  rests  upon  the  intention  of  the  testator,  as  re- 
marked upon  in  deciding  the  said  case  of  Waters  vs.  Howard 
and  others,  to  place  his  grandchildren  upon  a  footing  of  equality 
which  would  be  defeated,  if  the  said  Charles  A.  shall  be  per- 
mitted to  receive  the  rents  and  profits  of  the  property  in  his 
possession,  and  appropriate  them  to  his  own  use,  and  likewise 
receive  his  full  proportion  of  the  income  of  the  residue  of  the 
trust  estate. 

And,  if  by  his  negligence  or  misconduct  he  shall  impair  the 
value  of  that  portion  of  the  trust  estate,  to  the  possession  of 


WILLIAMS  AND  BRADFORD  VS.  WILLIAMS.  199 

which  he  has,  in  my  judgment,  no  right,  nothing  can  be  fairer, 
or  more  equitable,  than  that  the  loss  shall  fall  upon  him  alone. 
I  do  not  think,  that  the  share  of  the  trust  estate  of  the  said 
Charles  A.  Waters,  in  the  hands  of  the  trustee,  can  be  made 
responsible  for  the  prosecution  of  the  appeal,  which,  it  appears 
has  been  taken  by  him,  the  said  Charles  A.,  from  the  decree 
passed  upon  his  bill,  against  Charles  Howard  and  others — but 
until  that  appeal  shall  be  decided,  I  see  no  objection  to  per- 
mitting the  said  Charles  A.,  to  retain  the  possession  of  the  said 
property,  he  being  chargeable  with  the  rents  and  profits  there- 
of, to  be  retained  from  his  share  of  the  income  of  the  residue  of 
the  trust  estate.  An  order  will  be  passed  in  conformity  with 
these  views,  with  liberty  to  the  petitioner,  to  apply  for  further 
directions  as  to  proceedings,  to  secure  possession  of  the  trust 
estate,  in  the  possession  of  the  said  Charles  A.  Waters,  should 
circumstances  render  it  necessary. 

[No  appeal  was  taken  from  this  order.] 


WILLIAMS  AND  BRADFORD    } 

vs.  C     MARCH  TERM,  1848. 

GEORGE  H.  WILLIAMS  ET  AL.J 

[CHANCERY  PRACTICE — PRODUCTION  OF  BOORS  AND  PAPERS.] 

SINCE  the  assembly  of  1798,  ch.  84,  there  can  be  no  doubt  of  the  power  of  this 
court,  in  a  proper  case,  to  compel  either  of  the  parties  to  a  suit  to  produce 
books  and  papers  in  the  possession  of  the  adverse  party,  which  may  relate  to 
matters  in  issue  between  them. 

But,  this  is  a  power  to  be  exercised  with  caution,  and  the  party  calling  for  its 
exercise  should,  with  a  reasonable  degree  of  certainty,  designate  the  books 
and  papers  required,  and  the  facts  expected  to  be  proved  by  them. 

[On  the  19th  December,  1843,  George  Williams,  of  Harford 
county,  applied  for  the  benefit  of  the  insolvent  laws  of  Mary- 
land, and  at  May  term,  1844,  of  Harford  County  Court,  ob- 


200  HIGH  COURT  OF  CHANCERY. 

tained  his  final  discharge ;  his  son   George  H.  Williams  be- 
ing appointed  his   permanent  trustee.      At  the  time  of  said 
application,  the  insolvent  in  his  schedule  stated,  that  he  held 
one  hundred  and  seventy-five  shares  of  the  stock  of  the  Savage 
Manufacturing  Company ;  of  which,  fifty-five  shares  were  un- 
incumbered,    eighty-five    were  mortgaged   to   Birckhead   and 
Pearce,  and  thirty-five  were  mortgaged  to  Martha  Weld.     The 
unincumbered  shares  were  sold  by  the  trustee  at  public  sale, 
and  those  mortgaged  to  Birckhead  and  Pearce  were  advertised 
for  sale,  though  no  sale  of  them  was  made ;  and  the  interest 
of  the  mortgages  in  them  was  subsequently  assigned  to  John 
S.  Gittings.     A  bill  was  afterwards  filed  by  the  wife  of  the  in- 
solvent, claiming  seventy-five  of  the  last  mentioned  shares  as 
having  been  purchased  with  her  money,  and  placed  to  the  credit 
of  John  Hawkins,  (whose  administrator  united  in  her  suit,)  in 
trust  for  her  benefit ;  and  a  decree  was  passed  in  said  cause  in 
her  favor.     This  claim  was  resistetl  by  the  present   complain- 
ants, who  also  filed  their  bill  against  said  Elizabeth  Williams 
and  others,  for  the  suspension  of  the  proceedings  instituted  by 
her,  and  seeking  to  enforce  claims  which  they  professed  to  hold 
against  the  insolvent,  out  of  the  said  mortgaged  shares  ;  on  the 
ground,  that  the  said  shares  were  bought  by  the  insolvent  with 
his  own  money,  and  although  conveyed  by  him  to  said  Hawkins^ 
for  the  use  of  his  wife,  he  had  done  this  to  defraud  his  creditors, 
and  had  himself  always  exercised  acts  of  ownership  over  the  prop- 
erty.    The  claim  of  said  complainants  having  been  resisted, 
and  finding  it  necessary  to  examine  George  H.  Williams,    the 
permanent  trustee,  one  of  the  defendants,  and  to  have  the  books 
and  papers  of  the  insolvent,  who  was  not  a  party,  produced  by 
said  trustee,  in  whose  possession  they  were,  they  petitioned  for 
an  order  for  that  purpose,  which  was  granted  at  first,  but  was 
subsequently  suspended,  as  to  the  production  of  the  books  and 
papers,  and  the  matter  of  the  petition  set  down  for  hearing. 
Upon  which  the  Chancellor  delivered  the  following  opinion  :] 


WILLIAMS  AND  BRADFORD  VS.  WILLIAMS.  201 

THE  CHANCELLOR  : 

There  can  be  no  doubt  of  the  power  of  this  court  in  a  proper 
case,  to  compel  either  of  the  parties  to  a  suit,  to  produce  books 
and  papers  in  the  possession  of  the  adverse  party,  which  may 
relate  to  matters  in  issue  between  them.  If  the  power  could 
have  been  questioned  before,  the  act  of  1798,  ch.  84,  would 
dissipate  it ;  for  the  legislature  by  that  act,  in  express  terms, 
conferred  upon  the  Chancery  Court  power  and  authority  to  co- 
erce the  production  of  books,  writings  or  papers,  or  certified 
copies  of  such  parts  thereof,  as  contain  evidence  pertinent  to  the 
issue,  or  relative  to  the  matters  in  dispute  between  the  parties, 
either  in  cases  depending  in  the  courts  of  law,  or  in  this  court. 

The  power,  therefore,  is  free  from  doubt,  but  as  observed  by 
a  former  Chancellor,  it  is  a  power  to  be  exercised  with  caution, 
and  the  party  calling  for  its  exercise  should,  with  a  reasonable 
degree  of  certainty,  designate  the  books  and  papers  required, 
and  the  facts  expected  to  be  proved  by  them.  Unless  this  is 
done,  the  party  upon  whom  the  authority  of  the  court  is  brought 
to  bear,  may  find  it  impossible  to  comply  with  its  order,  which 
yet  must  be  enforced  by  attachment. 

The  rules  which  have  governed  this  court, 'upon  the  subject 
of  compelling  the  production  of  books  and  papers,  are  stated 
with  much  precision  in  the  cases  reported  in  1  Bland,  90,  in 
notes  ;  and  in  Duvall  vs.  the  Farmers'  Sank,  2  Bland,  686. 

The  petition  in  this  case  does  not  attempt  to  designate  the 
books  and  papers  called  for,  nor  the  facts  expected  to  be  proved 
by  them  ;  and,  therefore,  is  clearly  deficient  in  those  qualities 
which  have  been  deemed  essential  in  applications  like  the  pres- 
ent. The  defendant,  George  H.  Williams,  could  not  comply 
with  the  order,  without  producing  all  the  books  and  papers  in 
his  possession,  though  the  production  of  many  of  them  might 
be  wholly  unnecessary — the  facts  recorded  in  them  being  wholly 
irrelevant  to  the  matters  in  issue  between  these  parties — 
and  the  exhibition  of  them  embarrass  and  prejudice  him  in  the 
administration  of  his  trust. 

The  original  order  in  this  case  should  have  been  conditional, 
and  with  liberty  to  the  defendant  to  show  cause  ;  and,  therefore, 


202  HIGH  COURT  OF    CHANCERY. 

the  order  of  the  13th  of  October  last,  was  improvidently  passed. 
The  question  now,  however,  comes  up  on  the  application  to 
rescind  that  order  ;  and,  as  for  the  reasons  stated,  I  think  a 
sufficient  foundation  is  not  laid  for  the  order  asked  for.  It  is, 
thereupon,  ordered,  that  the  order  of  the  12th  of  December  last, 
suspending  so  much  of  the  order  of  the  13th  of  October  last,  as 
required  the  defendant,  George  H.  Williams,  to  produce  books 
and  papers,  be  made  absolute ;  and,  that  the  said  order  of  the 
13th  of  October  last,  to  that  extent,  be,  and  the  same  is  here- 
by, rescinded. 

[No  appeal  was  taken  from  this  order.] 


CASPER  MANTZ,  ADMINISTRATOR,} 

vs.  £     MARCH  TERM,  1848. 

BUCHANAN    ET  AL.  3 

[DOWER.] 

THERE  can  be  no  doubt,  that  a  wife,  notwithstanding  she  joins  her  husband  in 
a  mortgage,  may,  nevertheless,  take  her  dower  in  the  land  subject  to  the 
mortgage  ;  and,  that  she  has  a  right  to  redeem,  and  may  call  upon  the  per- 
sonal representatives  of  her  deceased  husband  to  apply  the  personal  assets  to 
the  extinguishment  of  the  mortgage  debt,  so  as  to  free  her  dower  from  the 
incumbrance. 

It  is  equally  clear,  that  if  a  wife  in  Maryland  relinquishes  her  dower  in  land? 
mortgaged  by  her  husband,  upon  private  examination,  according  to  the  act? 
of  assembly  upon  the  subject,  and  the  lands  are  sold  to  satisfy  the  mortgage 
debt,  whatever  may  be  her  right  to  a  proportion  of  the  proceeds  of  sale,  she 
cannot,  as  against  the  purchaser,  claim  dower  in  the  land. 

The  claim  of  a  widow  for  dower  is  a  highly  favored  one  ;  and  with  respect 
to  a  devise  accepted  by  her  in  lieu  of  it,  she  is,  by  the  terms  of  the  act  of  as- 
sembly and  by  judicial  decision,  regarded  as  a  purchaser  for  a  fair  consider- 
ation. 

Where  the  widow  had  received  an  assignment  of  her  dower  in  the  lands,  by  a 
court  of  competent  jurisdiction,  and  the  lands  were  subsequently  sold  under  a 
a  decree  to  satisfy  the  mortgage  debt ;  it  was  HELD — that  this  assignment  did 
not  deprive  her  of  the  right  to  be  provided  for  out  of  the  remaining  estate  of 
her  husband. 

The  law  intends  to  give  the  widow  one-third  of  the  husband's  real  estate,  by- 
way of  dower,  and  as  a  provision  for  her  support  ;  but  she  takes  it  subject 
to  liens  created  prior  to  the  marriage,  or  to  such  as  she  consents  to  after  the 
marriage,  in  the  mode  pointed  out  by  the  legislature,  and  she  can  take  no  more. 


MANTZ  VS.  BUCHANAN.  203 

[On  the  22d  May,  1830,  the  late  Honorable  John  Buchanan, 
of  Washington  county,  being  indebted  to  Casper  Mantz,  in  the 
sum  of  ten  thousand  dollars,  in  order  to  secure  its  payment, 
with  interest,  in  two  years,  executed  to  him  a  mortgage  of  the 
farm  on  which  he  then  resided ;  and  his  wife  united  in  the  ac- 
knowledgment of  the  deed,  for  the  purpose  of  relinquishing  her 
dower.  Mantz  died  in  the  year  1839,  and  on  the  17th  Janu- 
ary, 1844,  a  bill  was  filed  in  this  court  by  his  administrators,  c. 
t.  a.,  for  a  sale  of  the  mortgaged  premises.  A  decree  was  ac- 
cordingly passed  on  the  27th  February,  1844  ;  and  the  said 
Buchanan  died  in  October  of  the  same  year,  intestate,  leaving 
said  mortgage  debt  still  unpaid.  In  January,  1846, no  sale  hav- 
ing yet  been  made  under  the  decree,  a  bill  was  filed  by  George  M. 
Eichelberger,  who  held  as  trustee  certain  judgments  against  the 
mortgagor,  on  behalf  of  himself  and  of  the  other  creditors  of  the 
mortgagor,  against  his  heirs  at  law,  and  the  complainants  in 
the  first  bill ;  reciting  the  previous  proceedings  alleging  the 
sufficiency  of  the  personal  estate,  and  the  continuance  of  the 
mortgage  debt,  with  interest ;  and  praying  that  the  trustee  ap- 
pointed by  the  former  decree,  might  proceed  to  make  sale  of 
the  mortgaged  premises,  for  the  benefit  of  the  creditors  of  the 
deceased  mortgagor.  A  decree  was  passed  as  prayed,  and  the 
property  was  sold  on  the  29th  of  December,  1846.  In  the 
month  of  September  of  the  following  year,  an  order  was  passed 
on  the  petition  of  Maria  S.  Buchanan,  widow  of  the  deceased 
mortgagor,  allowing  her  a  proportion  of  the  whole  of  the  net 
proceeds  of  sale  ;  the  residue  thereof,  after  payment  of  the  mort- 
gage debt,  appearing  amply  sufficient  for  that-purpose.  But  on 
a  petition  of  Eichelberger  in  the  behalf  of  creditors,  stating  that 
dower  in  said  lands  had  already  been  assigned  to  her  by  the 
Washington  County  Court,  sitting  as  a  court  of  equity,  that 
order  was  rescinded,  and  a  day  fixed  for  hearing  the  matters  of 
the  two  petitions. 

The  first  question  presented  to  the  court,  for  decision,  was, 
whether  Mrs.  Buchanan  was  precluded  from  claiming  any  share 
of  proceeds  of  the  sale  by  the  proceedings  in  Washington  Coun- 
ty Court. 


204  HIGH  COURT  OF  CHANCERY. 

And  the  second  was,  whether,  if  not  so  precluded,  she  was 
entitled  to  a  proportion  of  the  entire  net  proceeds  of  the  sale  reg- 
ulated by  the  chancery  sale,  provided  her  claim  did  not  affect 
the  mortgage  debt,  or  only  to  a  proportion  of  the  surplus,  after 
satisfying  that  lien. 

To  the  first  of  these  the  Chancellor  said  :] 

THE  CHANCELLOR: 

It  has  been  argued  by  the  solicitor  of  the  judgment  creditor, 
that  Mrs.  Buchanan,  by  the  proceeding  in  Washington  County 
Court,  assigning  her  dower  in  these  lands,  has  made  her  election 
to  take  in  that  form,  and  that  she  cannot  now  claim  any  part  of 
the  purchase  money.  There  can  be  no  doubt  that  a  wife,  not- 
withstanding she  joins  her  husband  in  the  mortgage,  may  never- 
theless take  her  dower  in  the  lands,  subject  to  the  mortgage, 
and  that  she  has  a  right  to  redeem  and  may  call  on  the  personal 
representatives  of  her  deceased  husband,  to  apply  the  personal 
assets  to  the  extinguishment  of  the  mortgage  debt,  so  as  to  free 
her  dower  from  the  incumbrance.  4  Kent's  Com.,  44  ;  2  Powell 
on  Mortgages,  701. 

But,  it  is  equally  clear,  that  if  a  wife,  in  Maryland,  relin- 
quishes her  dower  in  lands  mortgaged  by  the  husband,  upon 
privy  examination,  according  to  the  acts  of  assembly  upon  the 
subject,  and  the  lands  are  sold  to  satisfy  the  mortgage  debt, 
whatever  the  right  of  the  wife  may  be,  to  a  proportion  of  the 
proceeds  of  the  sale,  she  cannot,  as  against  the  purchaser,  claim 
dowef  in  the  land.  The  principles  settled  by  the  Supreme 
Court  of  the  United  States,  in  the  case  of  Sidle  vs.  Carroll,  12 
Peters,  201,  are  considered  as  conclusively  establishing  this 
proposition.  And  such  is  also  shown  to  be  the  law  in  New 
York,  and  in  several  other  states,  in  4  Kent,  44. 

It  follows,  therefore,  that  notwithstanding  the  widow  of  the 
mortgagor  in  this  case  had  received  an  assignment  of  her  dower 
in  the  lands  by  a  court  of  competent  jurisdiction,  the  subse- 
quent Sale  under  a  decree  to  satisfy  the  mortgage  debt,  has 
effectually  deprived  her  of  the  benefit  of  the  assignment,  and 
that  unless  she  is  entitled  to  a  proportion  of  the  purchase  money, 
she  can  get  nothing. 


MANTZ  VS.  BUCHANAN.  205 

The  claim  of  a  widow  for  dower  is  a  highly  favored  one,  and 
with  respect  to  a  devise,  accepted  by  her  in  lieu  of  it,  she  is,  by 
the  terms  of  the  act  of  assembly,  and  by  judicial  decision,  re- 
garded as  a  purchaser  for  a  fair  consideration.  Act  of  1798,  ch. 
101,  sub-ch.  13,  sec.  5;  Gibson  vs.  McCormick,  10  Gill  Sf  f 
Johns,,  67. 

Suppose  in  this  case  it  had  happened,  that  a  title  paramount 
to  the  title  of  the  mortgagor  had  been  outstanding  in  some  third 
person,  and  after  the  assignment  of  the  dower,  this  title  had 
been  successfully  asserted,  and  the  doweress  turned  out  of  pos- 
session, would  she  not  have  had  a  right  to  be  compensated  out 
of  the  other  lands  of  her  husband,  if  he  left  any?  It  is  suppos- 
ed she  would,  and  that  the  rule  applicable  to  jointures  made 
subsequent  to  the  marriage,  from  which  the  widow  has  been 
fairly  evicted  by  law,  would  extend  to  a  doweress  legally  dis- 
possessed of  the  lands  assigned  to  her  in  dower. 

It  does  not  clearly  appear  in  this  case,  of  what  other  lands 
the  mortgagor  died  seized,  though  from  the  language  of  the 
mortgage,  in  describing  the  premises,  as  all  the  lands  of  the 
mortgagor  lying  "south-east  of  Hagerstown,"  it  is  fair  to  be 
inferred  that  he  held  other  lands.  Now,  presuming  such  to  be 
the  case,  and  that  the  widow,  by  a  defect  in  the  title  of  her 
husband,  had  been  deprived  of  the  lands  assigned  her  in  dower, 
would  not  justice  require,  that  some  compensation  should  be 
made  her  out  of  those  other  lands,  or  must  she  be  held  rigor- 
ously to  the  assignment,  be  the  consequences  what  they  may  ? 
There  cannot  be  a  question,  that,  under  the  act  of  assembly  of 
1818,  chap.  193,  sec.  10,  Mrs.  Buchanan,  would,  but  for  the 
proceedings  on  the  equity  side  of  Washington  County  Court, 
be  entitled  to  dower  to  some  extent  in  these  lands ;  because, 
notwithstanding  the  mortgage,  the  equitable  title  was  in  the 
husband,  and  the  act  in  terms  declares,  that  widows  shall  be 
entitled  to  dower  in  lands  held  by  such  title,  and  the  question, 
therefore,  is,  whether  this  proceeding  in  Washington  County 
Court,  shall  deprive  her  of  this  right,  when  it  is  obvious,  her 
title  to  the  lands  assigned  her  in  that  proceeding,  must  yield  to 
the  subsequent  sale,  to  satisfy  the  mortgage. 
VOL  i. — 18 


206  HIGH   COURT    OF  CHANCERY. 

When  dower  is  assigned  the  widow  by  the  heir,  or  by  the 
sheriff,  On  a  recovery  against  the  heir,  there  is  an  implied  war- 
ranty, and  if  the  tenant  in  dower  is  impleaded  by  one  having  a 
paramount  title,  she  may  vouch,  and  recover  against  the  heir,  a 
third  part  of  the  two  remaining  parts  of  the  land,  of  which  she 
is  dowable.  Park  on  Dower,  275. 

The  rule  then  in  the  case  of  jointures  made  after  the  marriage, 
and  dower  is  the  same,  and  if,  in  either  case,  the  widow  is  law- 
fully evicted,  she  has  a  right  to  be  provided  for  out  of  the  re- 
maining estate  of  the  husband;  and  when  it  is  apparent  from 
the  record,  as  in  this  case,  that  the  land  assigned  the  widow  as 
dower,  has  been  passed  to  the  third  party  by  the  act  of  the 
court,  and  it  has  a  fund  under  its  control,  out  of  which  she  may 
be  compensated,  it  would  certainly  seem  equitable,  that  it  should 
be  applied  to  that  object. 

I  am,  therefore,  of  opinion,  that  Mrs.  Buchanan  is  not  pre- 
cluded by  the  proceedings  in  the  Washington  County  Court 
from  claiming  a  proportion  of  the  purchase  money  of  these 
lands. 

[As  to  the  second  question,  the  Chancellor  said,  the  practice 
of  the  court  had  been,  to  allow  widows  a  proportion  of  the  en- 
tire net  proceeds  of  sale,  where  it  could  be  done  without  preju- 
dice to  the  party  claiming  the  original  purchase  money,  or  to 
the  holder  of  other  liens  contemplated  by  the  law ;  but  that 
the  question  had  never  been  deliberately  considered,  on  argu- 
ment, by  his  predecessors.  He  said  that,  in  many  of  the  states, 
including  Maryland,  a  wife  joining  her  husband  in  a  mortgage, 
would,  at  his  death,  be  entitled  to  dower,  subject  to  the  mort- 
gage, notwithstanding  a  release  by  him,  of  the  equity  of  re- 
demption. 4  Kent,  44;  Tabele  vs.  Tabele,  1  Johns.  Ch.  Rep., 
45 ;  Titus  vs.  Neilson,  5  Johns.  Ch.  Rep.  452. 

But  that,  such  claim  was  confined  to  the  equity  of  redemp- 
tion. Swain  vs.  Ferine,  5  Johns.  Ch.  Rep.,  482  ;  4  Kent,  39. 

He  said  also,  that  this  equity  was  represented  by  the  surplus 
remaining  after  satisfaction  of  the  mortgage  debt ;  and  that 
Mrs.  Buchanan,  by  joining  in  the  mortgage  with  her  husband, 


MANTZ  VS.   BUCHANAN.  207 

agreed,  that  in  the  event  of  her  surviving  him,  the  debt  should 
be  satisfied  out  of  the  estate,  before  the  claim  for  dower  should 
attach.  The  Chancellor  then  said  :J 

It  seems  not  to  be  denied,  and  indeed  the  highest  court  in 
this  state  is  understood  to  have  decided,  that  where  lands  are 
sold  to  satisfy  the  lien  of  the  vendor,  and  a  surplus  remains, 
the  wife  is  only  entitled  to  an  allowance  out  of  such  surplus, 
but  it  is  insisted,  that  her  right  is  not  to  be  thus  restricted, 
where  the  lien  is  of  any  other  description.  The  act  of  assem- 
bly, however,  makes  no  discrimination  between  the  lien  of  the 
vendor  and  other  liens.  It  says,  "such  right  of  dower  shall  not 
operate  to  the  prejudice  of  any  claim  for  the  purchase  money  of 
such  lands,  or  other  lien  on  the  same."  This  other  lien,  if  by 
the  act  of  the  husband  without  the  concurrence  of  the  wife, 
must,  it  is  said,  have  reference  to  liens  created  prior  to  the  mar- 
riage, and  this  it  is  thought  is  the  sound  construction.  But  if  the 
wife  does  concur,  by  uniting  in  the  mortgage,  or  relinquishing 
her  dower,  the  lien  must  be  attended  with  the  same  conse- 
quences, as  if  created  before  the  marriage,  or  residing  in  the 
vendor  for  the  security  of  the  purchase  money. 

The  legislature,  it  is  supposed,  intended  to  give  the  wife 
dower  only  in  the  interest  remaining  in  the  husband,  after  satis- 
fying the  vendors'  lien,  or  other  lien  existing  prior  to  the  mar- 
riage, or  created  afterwards,  with  her  concurrence  ;  as,  other- 
wise, it  is  not  difficult  to  imagine  cases  in  which  much  preju- 
dice might  be  inflicted  upon  creditors. 

Suppose  in  this  case  there  had  been  no  surplus  proceeds  of 
sale,  after  satisfying  the  mortgage  debt,  but  the  mortgagor  had 
owned  other  real  estate  which  had  been  sold  for  the  purpose  of 
paying  general  creditors,  or  for  partition  among  the  heirs ; 
would  the  widow  have  been  entitled,  out  of  the  proceeds  of  such 
sale,  to  receive  not  only  her  proportion  of  them  but  her  pro- 
portion of  the  proceeds  of  the  mortgaged  lands?  It  could,  I 
think,  hardly  be  contended. 

Or  could  she,  if  she  applied  for  an  assignment  of  dower  in 
the  other  lands,  have  asked,  that  she  should  receive  a  share  of 


208  HIGH  COURT  OF  CHANCERY. 

of  them,  and  also  an  equivalent  for  her  proportion  of  the  sales 
of  the  lands  sold  to  pay  the  mortgagee  ?  It  would  be  difficult  to 
make  out  such  proposition,  and  yet  it  would  seern  to  follow 
from  the  position,  that  a  widow,  out  of  the  proceeds  of  land 
sold  to  pay  a  debt,  secured  by  a  mortgage  in  which  she  has  unit- 
ed, is  entitled  to  an  allowance,  calculated  upon  the  whole  pro- 
ceeds of  sale,  and  not  merely  upon  the  surplus,  after  paying  the 
mortgaged  debt. 

The  law  intends  to  give  the  widow  one-third  of  the  husband's 
real  estate,  by  way  of  dower,  and  as  a  provision  for  her  support, 
but  she  takes  it  subject  to  liens  created  prior  to  the  marriage, 
or  to  such  as  she  consents  to,  after  the  marriage,  in  the  mode 
pointed  out  by  the  legislature,  and  she  can  take  no  more. 

If  the  contrary  doctrine  prevail,  it  will  not  unfrequently  hap- 
pen, that  the  widow  will  not  get  one-third  only,  or  its  equiva- 
lent, but  the  whole  surplus,  after  paying  the  liens,  will  be  re- 
ceived by  her,  to  the  prejudice  of  the  heirs  at  law,  and  creditors. 

The  widow  was,  therefore,  allowed  by  the  decree,  one-four- 
teenth of  the  surplus  only  of  the  proceeds  of  sale  after  deduct- 
ing the  mortgage  debt  with  interest. 

[No  appeal  was  taken  from  this  decree.] 


ROBERT  SEW  ALL  ^ 

vs.  C     MARCH  TERM,  1848. 

SYLVESTER  J.  COSTIGAN    ET  AL.3 

[POWERS    AND"  DUTIES    OF    TRUSTEES.] 

A  TRUSTEE  for  the  sale  of  lands  under  a  decree  of  a  court  of  equity,  is  the 
mere  instrument  or  agent  by  whose  hands  the  court  acts,  and  the  sales  made 
by  him  are,  in  fact,  the  sales  of  the  court. 

The  court  has  the  incontestible  power  to  pass  an  order,  directing  the  trustee 
to  bring  the  proceeds  of  sale  into  court,  to  be  disposed  of  under  its  direction. 

The  court  is  not  disposed  to  look  with  favor  upon  the  appropriation  by  its 
trustee  of  the  proceeds  of  sales,  without  its  previous  authority ;  and  such 
conduct  will  be  viewed  with  especial  jealousy  where  married  women  and 
children  are  concerned,  and  the  property,  or  fund  raised  by  the  sale,  is  sub- 
ject to  marriage  settlements,  designed  for  the  support  of  families. 


SEW  ALL  VS.  COSTIGAN.  209 

[This  case  was  argued  on  exceptions  to  the  Auditor's  report, 
and  on  a  motion  by  John  H.  Key,  a  conventional  trustee,  and 
one  of  the  parties,  for  an  order  on  the  trustee  appointed  to 
make  sale  of  the  real  estate,  to  bring  into  court  the  sum  of 
$3,639  80,  a  part  of  the  purchase  money  received  by  him. 

The  original  bill  was  filed  to  enforce  a  vendor's  lien,  and  the 
real  estate  was  sold  under  a  decree,  which,  as  usual,  directed  the 
trustee,  appointed  to  make  the  sale,  to  bring  the  proceeds  into 
court. 

After  the  payment  of  the  purchase  money  a  large  surplus  was 
left,  which  was  claimed  by  John  H.  Key,  as  trustee,  under  a 
marriage  settlement,  which  gave  him  the  estate  sold,  in  trust, 
for  the  purchaser  until  her  marriage,  for  her  husband  during  his 
life  without  being  liable  for  his  debts,  for  the  wife  after  the  death 
of  her  husband,  in  fee,  but  if  the  wife  died,  leaving  her  husband 
or  the  child  or  children  of  the  marriage,  and  if  none,  for  her 
heirs.  There  was  a  covenant  on  the  part  of  the  husband  to 
apply  the  personal  estate  of  the  wife  to  the  payment  of  the  pur- 
chase money  due  to  the  complainant,  and  an  authority  to  John 
H.  Key  the  trustee,  with  the  assent  of  the  husband  and  wife,  to 
sell  and  re-invest.  The  trustee  and  the  husband  and  wife  were 
parties  to  the  original  proceedings. 

The  first  objection  to  the  application  to  bring  the  money  into 
court  was,  that  Key  was  acting  under  a  private  conventional 
trust  with  which  this  court  had  nothing  to  do.  To  this  objec- 
tion the  court  said  :] 

THE  CHANCELLOR: 

Gough,  the  trustee,  by  whom  this  sale  was  made,  under  the 
authority  of  a  decree  of  this  court,  is  its  mere  officer  and  agent, 
and  by  the  very  terms  of  his  authority,  wras  required  to  bring 
the  proceeds  of  sale  in,  to  be  disposed  of  under  its  direction. 
In  fact,  the  sale  made  by  him,  is  the  sale  of  the  court,  he  being 
the  mere  instrument  or  agent  by  whose  hand  the  court  acts. 
It  is  the  sale  of  the  court  and  not  his  sale,  and  when  he  under- 
took to  act  as  its  agent  in  this  respect,  he  became  bound  as 
well  by  the  spirit,  as  the  letter,  of  the  power  delegated  to  him, 
to  obey  its  orders.  Can  it  be  possible,  that  this  court  has  not 
18* 


210  HIGH  COURT  OF  CHANCERY. 

the  power  to  compel  its  own  agent  to  bring  in  the  proceeds  of 
property  sold  under  its  authority,  that  application  may  be  made 
of  such  proceeds  to  the  purposes  contemplated  by  the  decree? 
This  is  not  a  question  between  the  court  and  Key,  the  conven- 
tional trustee,  but  between  the  court  and  the  trustee  of  its  own 
appointment,  and  as  to  him,  I  apprehend,  the  power  to  pass  the 
order  asked  for,  is  incontestible.  Glenn  vs.  Clapp,  1 1  Gill  Sf 
Johns.,  8;  Penn  vs.  Brewer,  12  ib.,  113  ;  Mullikin  vs.  Mulli- 
kin,  1  Bland,  538  ;  Iglehart  vs.  Armiger,  ib.,  527. 

[The  second  objection  was,  that  on  the  sale  of  the  estate  by 
a  trustee  of  the  court  appointed  for  that  purpose,  the  trustee  ap- 
pointed by  the  parties  was  functus  officio,  and  could  claim  no 
interest  in  the  fund  raised  by  the  sale  ;  and  that,  at  all  events, 
the  husband  and  wife  as  being  beneficially  interested,  ought  to 
have  united  in  the  motion.  To  this,  it  was  answered  by  the 
court :] 

By  the  terms  of  the  deed,  the  trustee  was,  under  the 
circumstances  therein  mentioned,  authorized  to  sell  the  proper- 
ty, and  the  proceeds  were  to  be  invested  upon  the  like  trusts 
and  uses,  and  subject  to  the  same  powers  and  purposes,  as  were 
declared  with  regard  to  the  land,  and  I  take  it  to  be  very  clear, 
that  the  investment  spoken  of  in  the  deed,  was  to  be  made  in 
the  name  of  the  same  trustee,  and  that  now,  the  fund  being  un- 
der the  control  of  this  court,  the  investment  must  be  made  in 
his  name,  unless  some  satisfactory  reason  is  assigned  for  the  se- 
lection of  another.  John  H.  Key  was  an  indispensable  party 
to  the  original  bill  filed  in  this  case — Story^s  Eq.  Plead.,  187 — 
and  being  thus  a  party  to  the  cause,  it  not  only  was  his  priv- 
ilege, but  his  duty,  if  he  saw,  or  thought  he  saw,  the  trust  fund 
in  danger,  to  interpose  for  its  protection.  Having  so  interposed, 
it  does  not  become  the  agent  of  this  court,  whose  duty  it  was 
to  sell  the  property,  and  deliver  the  proceeds  of  sale  over  to  the 
court,  to  say,  that  he  is  spurred  on  to  do  that  which,  by  the 
terms  of  the  decree,  he  was  required  to  do  by  a  party  who  has 
no  interest. 

[The  third  objection  was,  that  the  trustee  for  the  sale  under 


SEW  ALL  VS.  COSTIGAN.  211 

the  decree,  had  made  advances  for  the  support  of  the  husband 
and  wife  and  paid  money  in  discharge  of  the  debts  of  the  hus- 
band, which  ought  to  be  reimbursed  ;  and,  that  no  order  ought 
to  be  passed  for  bringing  in  the  money  until  the  husband  and 
wife  answered  a  petition  of  the  trustee  for  the  sale,  as  to  those 
advances,  filed  on  the  day  of  the  hearing.  To  this  the  court  said :] 

The  sums  thus  alleged  to  have  been  advanced  by  the 
trustee,  Gough,  nearly  absorb  the  whole  trust  fund,  and  not  in- 
tending, at  this  time,  to  pronounce  an  opinion  in  reference  to 
them,  I  cannot  well  understand  how  the  trustee  of  this  court, 
who  was  certainly  not  required  to  complicate  himself  with  such 
transactions,  but  whose  duties  were  plain  and  simple,  shall  be 
permitted,  by  passing  beyond  the  line  of  his  duty,  to  exonerate 
himself  from  those  obligations  which  the  decree  appointing  him 
imposed  upon  him. 

The  court  is  not  disposed  to  look  with  favor  upon  the  appro- 
priation by  its  trustee,  of  the  proceeds  of  sales  of  property  made 
under  its  decrees,  without  its  previous  authority,  and  such  ap- 
propriations have  been  condemned  upon  former  occasions.  Mac- 
kubin  vs.  Brown,  IBland,  410  ;  Iglehart  vs.  Jlrmiger,  ib.,  519. 

And,  more  especially,  will  such  conduct  be  viewed  with 
jealousy,  when  married  women  and  children  are  concerned, 
and  the  property  or  fund  raised  by  the  sale,  is  subject  to  mar- 
riage settlements,  designed  for  the  support  of  families.  Pay- 
ments made  under  such  circumstances,  cannot  be  offered  as  an 
excuse  for  not  doing  that  which  the  decree  plainly  directed  to 
be  done.  But,  it  is  said,  that  Costigan  was,  under  the  marriage 
settlement,  entitled  to  the  usufruct  of  this  property  for  life;  and, 
therefore, -to  that  extent,  the  appropriation  was  strictly  within 
the  terras  of  the  trust.  Conceding  that  Costigan  was  so  entitled, 
it  by  no  means  follows,  that  the  trustee,  Gough,  was  justifiable 
in  making  the  applications.  He  was  not  the  trustee  of  Costi- 
gan and  wife,  but  the  trustee  of  this  court,  authorized  to  sell  the 
property  and  bring  the  avails  in,  to  be  disposed  of  under  the  di- 
rection of  the  Chancellor  ;  and  it  would  be  strange  if  he  could 
rid  himself  of  this  duty,  by  assuming  a  character  to  which  he 


212  HIGH  COURT  OF  CHANCERY. 

has  no  title,  but  which  the   parties  interested  had    conferred 
upon  another  and  different  person. 

It  is  manifest,  also,  that  he  has  gone  far  beyond  the  limits  to 
which  he  must  have  been  confined,  even  if  he  could  be  viewed 
as  the  trustee  of  Costigan  and  wife,  and  that  if  such  conduct 
is  sanctioned,  the  trust  estate  will,  in  a  very  short  time,  be  ut- 
terly annihilated,  and  the  rights  of  the  parties  entitled  in  re- 
mainder entirely  defeated. 

v  The  power  delegated  to  this  trustee  was  clearly  defined,  and 
has  been  unquestionably  transcended;  and  I  am,  therefore,  of  opin- 
ion, that  the  order  of  the  12th  of  May  last,  must  be  made  absolute. 

[No  appeal  was  taken  from  this  decree.] 


:i 


ROBERT  CONN  ET  AL. 

•vs.  J>     MARCH  TERM,  1848. 

JAMES  CONN  ET  AL. 


[POSTHUMOUS  CHILD — SEPARATE  ESTATE  OF  MARRIED  WOMEN.] 

COURTS  of  equity  will  use  all  possible  ingenuity  to  construe  testamentary  ex- 
pressions, in  such  manner  as  to  include  all  children  living  at  the  testator's 
death  ;  and,  a  child  in  ventre  sa  mere  is  considered  as  living  at  that  time. 

When  the  testator  stands  in  the  relation  of  parent  to  the  legatees,  a  court  of 
equity  will  lay  hold  of  any  general  expression,  which  will  include  all  the 
children,  though  it  may  be  apparent  from  the  context,  that  only  children  in 
existence  when  the  will  was  made,  were  within  the  contemplation  of  the 
testator. 

Yet,  when  it  is  evident,  that  the  testator  really  forgot  that  other 'children  might 
be  born  to  him,  and  has,  upon  the  face  of  the  instrument,  made  provision  for 
only  such  as  were  living  at  the  date  of  the  will,  it  is  impossible  to  supply  the 
defect  and  give  such  after-born  child  any  provision,  notwithstanding  the  anx- 
iety of  the  court  to  do  so. 

Where  the  testator  has  described  the  children,  by  name,  among  whom  the  estate 
is  to  be  divided  upon  the  happening  of  a  contingency,  it  is  impossible  to  bring 
a  posthumous  child  within  the  description. 

Before  the  separate  estate  of  a  married  woman  can  be  charged  for  her  engage- 
ments, it  must  be  shown  that  her  contract  was  made  with  direct  reference 
to  such  separate  estate  ;  and  she  is  not  to  be  regarded  with  respect  to  such 
estate,  as  a  feme  sole,  to  all  intents  and  purposes,  and  bound  by  any  form  of 
contract  into  which  she  may  please  to  enter,  whether  made  with  reference 
to  such  estate  or  not. 

It  is  competent  to  show  the  intention  of  the  wife,  to  charge  her  separate  estate, 
by  parol  evidence . 


CONN  VS.  CONN.  213 

[William  Conn,  deceased,  by  his  will  dated  14th  June,  1821, 
devised  all  his  property,  (consisting  of  real  estate  in  Baltimore 
county,)  after  payment  of  his  debts,  &c.,  to  his  wife  Elizabeth 
Conn  for  life  ;  to  be  divided  equally  amongst   all  his  children, 
whom  he  mentioned  by  name,  in  case  she  should  marry  before 
his  youngest  child,  Margaret,  arrived  at  the  age  of  twenty-one 
years.     Should  she  marry  before,  the  division   was   not   to  be 
made  till  his  said  daughter  attained  that   age ;  but   if  such 
marriage  should  afterwards  occur,  the  division  was  to  be  made 
immediately.     Six  months  after  the  testator's  death  his  widow 
had  a  son,  Silas  W.  Conn,  for  whom   no  provision  was  made 
in  said  will;  and  afterwards  in  the  year  1833,  she  intermarried 
with  James  Hall  of  Baltimore  county,   and  died  in  the  year 
1841,  leaving  no  issue   by  said   Hall,  who  survived  her.     By 
deed    of  trust  and    settlement,  between   said   Elizabeth,  and 
James  Hall,  and  James  Conn,  executed  a  few  days  before  the 
marriage,  her  personal  property  was  conveyed  to  James  Conn, 
in  trust,  for  her  sole  and  separate  use,  with  power  to  dispose 
of  the  same  as  if  she  were  zfeme  sole,  and  invest  the  proceeds 
in  such  manner  as  she  thought  fit ;  and  also,  with  the  power  to 
dispose  of  the  same  by  will.     After  her  marriage  to  Hall,  she 
purchased  of  four  of  the  children  of  her  first  husband,  the 
interest   which  they  severally  had  in  their  deceased  father's 
estate.     The  real  estate  of  the  testator,  Wm.   Conn,  was,  after 
the  death  of  his  widow  sold  under  proceedings  in  this  court, 
and  two  accounts  were  stated  by  the  Auditor,  assigning  the 
proceeds  of  sale  to  the  parties  entitled  under  the  will  of  the 
testator.     Before  such  distribution  was  actually  made,  a  peti- 
tion was  filed  by  Edward  Jenkins  and  others,  stating  that  said 
Elizabeth,  during  her  second  marriage,  had  been  possessed  of 
a  separate  estate,  and  had  traded  as  a  feme  sole,  with  the  con- 
sent of  her  husband  ;  that  she,  together  with  him,  had  made  to 
the  petitioners,  respectively,  a  single  bill,  and  two  promissory 
notes  ;  and  had  died,  without  paying  the  same,  and  leaving  no 
assets  except  the  funds  then   in  court  for  distribution.     The 
petition  further  stated,  that  James  Hall,  was  also  dead,  insolv- 
ent,  and  prayed  for  an  application  of  the  said   funds,  to  the 


214  HIGH  COURT  OF  CHANCERY. 

satisfaction  of  the  petitioner's  debts.  A  petition  was  filed  for 
the  same  purpose,  by  John  Glenn,  as  permanent  trustee  of  an- 
other creditor,  of  said  Elizabeth,  on  a  note  given  during  her 
coverture,  by  her  and  her  son  Thomas,  with  whom  she  had 
traded,  under  the  firm  and  style  of  Thomas  Conn  &  Co.,  said 
note  was  given  in  April,  1839,  and  the  firm  afterwards  failed, 
and  Thomas  Conn  obtained  his  discharge  under  the  insolvent 
laws.  The  statute  of  limitations  was  pleaded  against  all  these 
claims,  but  was  afterwards  withdrawn  against  all  but  the  latter, 
which  was  marked  No.  4,  the  three  first  being  numbered,  re- 
spectively, 1,  2  and  3.  In  the  subsequent  account  of  the 
Auditor,  the  proceeds  of  sale  were  distributed  amongst  the 
children  of  William  Conn,  including  the  posthumous  child  Silas 
W.  Conn,  and  the  portion  which  in  the  previous  accounts  was 
assigned  to  them  as  heirs  at  law,  of  their  mother,  was  therein 
applied  to  the  part  satisfaction  of  the  claims  filed.  Exceptions 
to  this  account  were  filed,  and  submitted  to  the  Chancellor  on 
written  arguments,  the  principal  points  raised  being,  whether 
the  posthumous  child  of  William  Conn,  was  entitled  to  a  share 
of  his  father's  estate ;  and,  whether  the  separate  estate  of 
Elizabeth  Hall,  could  be  applied  to  the  satisfaction  of  the  claims 
filed  :] 

THE  CHANCELLOR: 

It  is  true,  that  a  court  of  equity  will  use  all  possible  ingenu- 
ity in  construing  testamentary  expressions  in  such  manner 
as  to  include  all  children  in  existence  at  the  testator's  death ; 
and,  that  a  child  in  ventre  sa  mere  is  considered  as  living  at 
that  time. 

And,  it  is  also  true,  that  when  the  testator  himself  stands  in 
the  relation  of  parent  to  the  legatees,  in  which  case  it  is  his  duty 
to  provide  for  his  children  at  his  death,  a  court  of  equity  will 
lay  hold  of  any  general  expressions  which  will  include  all  the 
children,  notwithstanding,  it  may  be  apparent  from  the  context, 
that  only  children  in  existence  when  the  will  was  made  were 
within  the  contemplation  of  the  testator.  Yet,  even  as  between 
parent  and  child,  when  it  is  evident  that  he  really  forgot  that  other 


CONN  VS.  CONN.  215 

children  might  be  born  to  him,  and  has,  upon  the  face  of  the 
instrument,  made  provision  for  only  such  as  were  living  at  the 
date  of  the  will,  it  is  impossible  to  supply  the  defect,  and  give 
such  afterborn  child  any  provision,  notwithstanding  the  anxi- 
ety of  the  court  to  do  so.  1  Roper  on  Legacies,  146,  3  ves., 
611.  . 

In  this  case,  the  testator  has  described  the  children  byname, 
among  whom  the  estate  was  to  be  divided  upon  the  happening 
of  either  contingency  upon  which  the  estate  to  his  widow  was 
to  determine  ;  and,  it  is  impossible,  therefore,  to  bring  this 
posthumous  son  within  the  description.  He  must,  therefore,  be 
excluded  from  the  distribution. 

[As  to  the  second  question,  the  Chancellor  said  :] 

These  creditors  of  Mrs.  Elizabeth  Hall,  rest  their  right  to  be 
paid  their  several  claims  out  of  the  proceeds  of  her  real  estate, 
upon  the  ground,  that  by  the  marriage  contract  between  her  and 
her  husband,  Hall,  her  estate  was  settled  to  her  separate  use ; 
and  there  can  be  no  doubt  that  a  feme  covert,  with  respect  to 
her  separate  property,  will  be  regarded  in  a  court  of  equity,  to 
some  extent  at  least,  as  a  feme  sole,  and  may  dispose  of  it  with- 
out the  assent  of  her  trustee,  unless  she  is  specially  restrained 
by  the  instrument  by  which  she  acquires  the  separate  estate. 
Eminent  judges  have  differed,  it  is  true,  with  regard  to  the  pre- 
cise limits  of  this  pow^r.  Some  insisting,  that  the  mode  of  dis- 
position pointed  out  in  the  instrument  (and  none  other)  must 
be  pursued  ;  whilst  others  have  held,  that  even  though  a  par- 
ticular mode  is  specifically  pointed  out,  any  other  may  be  adopt- 
ed, unless  the  instrument  itself  restrains  the  wife  to  the  particu- 
lar mode.  Methodist  Church  vs.  Jaques,  3  Johns.  Ch.  Rep., 
77 ;  Jaques  vs.  Methodist  Church,  17  Johns.  Rep.,  548. 

As,  however,  in  this  case  no  particular  mode  of  disposing  of 
the  property  settled  upon  Mrs.  Hall  is  pointed  out,  but  she  is, 
by  the  instrument,  left  at  liberty  to  dispose  of  it  as  if  she  was 
a  feme  sole,  there  is  no  necessity  for  expressing  any  opinion 
upon  the  point  in  regard  to  which  the  Court  of  Errors  and  the 
Chancery  Court  of  New  York  appear  to  have  differed. 


216  HIGH  COURT   OF  CHANCERY. 

In  the  case  of  Price  and  Nlsbet  vs.  Bigham,  7  Harr.  and 
Johns.,  296,  a  contract  by  a  married  woman,  to  charge  land 
conveyed  to  a  trustee,  for  her  separate  use  during  the  coverture, 
with  power  to  sell  and  convey,  and  absolutely  dispose  of  the 
same,  was  maintained  ;  and  the  land  charged  by  her  with  the 
payment  of  the  debt  was  held  liable  therefor  in  equity.  The 
court,  in  this  case,  put  their  decision  upon  the  ground,  that  the 
charge  was  within  the  meaning  and  spirit  of  the  disposing  pow- 
er ;  and  expressly  waived  any  decision  of  the  question  of  the 
validity  of  the  contract,  upon  the  broad  ground  of  treating  the 
wife,  in  respect  of  the  property  settled  to  her  separate  use,  as  a 
skigle  woman  ;  resting  their  decision  upon  the  special  charge 
by  which  she  made  it  liable. 

The  case  of  Tiernan  vs.  Poor  and  wife,  1  G.  #  «/.,  216, 
was  a  case  in  which  a  wife,  having  the  absolute  power  by  deed 
or  contract,  to  dispose  of  real  estate  conveyed  to  her  sole  use, 
after  the  marriage,  without  the  concurrence  of  her  husband,  ex- 
ecuted to  the  complainant  with  her  husband,  a  mortgage  upon 
her  separate  estate,  to  secure  to  him  a  debt  due  from  her  hus- 
band, upon  consideration  that  the  creditor  surrendered  an  ex- 
isting security.  This  was  decided  to  be  a  contract  within  the 
limits  of  the  wife's  disposing  power,  and  was  enforced  as  such. 

And  in  the  subsequent  case  of  Brundige  vs.  Poor  et  ux. 
1  G.  Sf  Johns.,  1.  The  Court  of  Appeals  decided  that  a  deed 
executed  by  husband  and  wife  in  the  form  of  a  mortgage,  of 
real  estate  held  in  trust  for  the  separate  use  of  the  wife,  though 
not  acknowledged  according  to  the  acts  of  assembly,  created 
a  specific  lien  on  the  trust  property,  and  it  was  enforced  accord- 
ingly— the  deed  being  to  secure  the  payment  of  a  debt  due  from 
the  husband,  and  the  consideration  being,  the  giving  him  time 
to  pay  the  debt. 

In  all  these  cases,  it  will  be  seen  that  there  was  a  clear  en- 
gagement on  the  part  of  the  wife,  to  charge  specifically  the 
property  settled  to  her  separate  use ;  and  no  allusion  is  made 
in  either  of  them,  except  in  the  case  in  7  Harr.  fy  Johns.,  296, 
to  the  effect  of  a  contract  on  the  part  of  the  wife,  without  such 
specific  charge,  regarding  her  simply  as  a  feme  sole. 


CONN  VS.  CONN.  217 

There  is,  however,  a  very  decided  opinion  expressed  by  the 
learned  judge,  who  delivered  the  opinion  of  this  court,  in  Tier- 
nan  vs.  Poor  and  wife,  that  the  contract  by  which  the  separate 
estate  of  a  married  woman  is  attempted  to  be  charged,  must  be 
shown  to  be  within  the  limits  of  her  jus  disponendi,  and  it  is 
not  very  clearly  seen  how  this  can  be  done,  unless  it  be  also 
shown  that  she  is  contracting  for  the  direct  purpose  of  charging 
such  separate  estate. 

The  case  of  Gray  vs.  Cook,  12  G.  fy  «/.,  236,  relates  particu- 
larly and  exclusively  to  the  degree  of  the  proof,  which  it  is  ne- 
cessary to  produce,  of  the  intention  of  the  wife  to  pledge  her 
separate  estate.  There  is  certainly  nothing  in  that  case  frt>m 
which  it  can  be  fairly  inferred,  that  the  contract  of  a  feme  covert 
will  be  enforced  against  her  separate  estate,  unless  it  is  shown 
that  she  intended  to  charge  it. 

It  would  seem,  therefore,  in  this  case,  that  before  these  parties 
can  succeed  in  their  application  to  have  the  proceeds  of  the 
land  which  has  been  sold  under  the  decree  of  this  court,  (or 
that  portion  of  it  to  which  Mrs.  Hall,  is  entitled,)  charged  with 
the  payment  of  their  claims,  they  must  show,  first,  that  her  in- 
terest in  the  land  was  part  of  her  trust  estate  ;  and,  secondly, 
that  she  designed  to  charge  it  with  such  payment. 

This  land  was  purchased  by,  and  conveyed  to  Mrs.  Hall, 
during  her  coverture  ;  notwithstanding  which  the  conveyance 
is  good,  there  being  no  act  declaring  the  dissent  of  the  hus- 
band, nor  a  waiver  or  disagreement  thereto  by  the  wife,  after 
his  death.  2  Kent's  Comm.,  150,  lecture  28. 

The  property  embraced  in  the  marriage  settlement  was  per- 
sonal, merely  ;  and  for  that  reason,  as  well  as  because  the  set- 
tlement was  executed  long  prior  to  the  deeds  conveying  the  land 
to  her,  the  settlement  could  not  comprehend  the  latter.  Upon 
the  face  of  the  instruments,  therefore,  the  property,  the  proceeds 
of  which  are  sought  to  be  affected  by  these  proceedings,  consti- 
tuted no  part  of  the  trust  estate ;  and  although  the  marriage 
settlement  provided  for  a  sale  of  the  property  embraced  in  it, 
and  a  reinvestment  of  the  proceeds  in  other  property  or  funds, 
there  is  nothing  in  this  case  to  show  such  sale  and  reinvestment, 
VOL  i. — 19 


218  HIGH   COURT  OF   CHANCERY. 

and  of  course  it  does  not  appear  that  the  land  in  question  was 
purchased  with  the  product  of  the  trust  estate,  and  has  been 
substituted  for  it. 

These  lands,  therefore,  are  not  shown  to  have  been  a  part  of 
the  trust  estate. 

And  even  if  there  were  grounds  for  inferring,  that  the  lands 
were  so  purchased,  and  that  they  are  to  be  considered  as  con- 
stituting a  part  of  the  trust  estate  of  Mrs.  Hall,  and  subject  to 
her  disposition  in  equity,  as  a  feme  sole,  these  creditors  would 
still,  in  my  judgment,  not  be  entitled  to  be  paid  out  of  the  pro- 
ceeds of  their  sale,  unless  they  could  also  prove  that  she  intend- 
edfrto  charge -them  with  the  payment  of  their  claims. 

Although  a  married  woman  having  a  separate  estate,  is,  with 
respect  to  it,  to  be  regarded  as  a  feme  sole,  yet  her  capacity  to 
act  as  such,  is  to  be  confined  to  that  very  property,  and  she  is 
not  as  to  all  intents  and  purposes  placed  on  the  same  footing 
with  an  unmarried  woman.  I  have  not  been  able  to  find  any 
American  case  in  which  the  power  of  the  wife  over  her  sepa- 
rate estate,  has  been  carried  farther ;  and  Chancellor  Kent,  in 
the  elaborate  opinion  delivered  by  him,  in  the  case  of  the  Meth- 
odist Church  vs.  Jaques,  3  Johns.  Ch.  Rep.,  77,  over  and  over 
again  approves  of  this  limitation  upon  the  power  of  the  wife. 
The  act,  to  be  binding,  must  be  with  respect  to  her  separate 
property ;  and  although  she  may  not,  in  the  disposition  of  her 
separate  estate,  be  confined  to  the  particular  mode  pointed  out 
in  the  instrument,  yet  I  apprehend,  that  before  her  separate  es- 
tate can  be  charged  for  her  engagements,  it  must  be  shown,  that 
her  contract  was  made  with  direct  reference  to  such  separate 
estate  ;  and  that  she  is  not  to  all  intents  and  purposes,  as  to  it, 
to  be  regarded  as  a  feme  sole,  and  bound  by  any  form  of  con- 
tract into  which'  she  may  please  to  enter,  whether  made  with 
respect  to  her  separate  estate,  or  not. 

Still,  looking  to  the  case  of  Gray  vs.  Cook,  12  G.  &  «/.,  236, 
I  am  of  opinion,  that  it  would  be  competent  for  these  parties 
to  show  by  parol  evidence,  that  Mrs.  Hall,  when  she  entered 
into  the  engagements,  upon  the  strength  of  which  they  now 
attempt  to  charge  the  proceeds  of  these  lands,  designed  to 


CONN  VS.  CONN.  219 

pledge  her  separate  estate  ;  and  if  they  can  succeed  in  doing 
so,  and  can  likewise  remove  the  other  objections  which  stand 
in  their  way,  they  may  be  entitled  to  be  paid. 

The  claims  numbered  1,  2,  and  3,  are,  as  has  been  stated, 
founded  upon  the  joint  notes  of  James  Hall,  the  husband,  Eliza- 
beth Hall,  the  wife  ;  and  although  it  is  admitted,  that  he  as  well 
as  his  wife,  died  leaving  no  personal  estate,  it  is  not  shown 
that  he  left  no  real  estate ;  and  consequently,  in  any  event, 
without  further  proof,  the  estate  of  the  wife  could  be  charged 
with  no  more  than  one-half  of  the  claim.  To  make  her  estate 
liable  for  the  whole  claim,  regarding  it  as  a  joint  debt,  the  in- 
solvency of  James  Hall,  must  be  shown. 

I  do  not  concur  with  the  reasoning  of  the  counsel  for  these 
creditors,  that  it  is  immaterial  whether  the  land  was  settled  to 
the  separate  use  of  Mrs.  Hall,  or  not;  and  that  a  liability  can 
be  fastened  upon  her,  upon  the  ground  that  she  traded  and 
dealt  as  a  feme  sole. 

The  cases  of  Clayton  vs.  Jidams^  6  T.  jR.,  545,  and  Mar- 
shall vs.  Rutten,  8  T.  R.,  545,  are  conclusive  against  any  such 
doctrine. 

Under  all  the  circumstances  of  this  case,  I  shall  order  it  to 
stand  over  for  a  reasonable  time,  with  liberty  to  these  creditors 
to  furnish  evidence,  if  in  their  power,  to  remove  the  objections 
which  have  presented  themselves  to  my  mind,  to  the  payment 
of  their  claims  in  the  present  state  of  the  proceedings  ;  reserv- 
ing the  power  to  pass  such  further  orders  in  the  premises,  as 
the  nature  of  the  case  may  require. 

[No  appeal  was  taken  in  this  case.] 


220  HIGH  COURT  OF  CHANCERY. 


CHARLES  DIXON  ET  AL. 

vs.  £»     MARCH  TERM,  1848. 

HENRY  R.  W.  DIXON    ET  AL. 

[ASSIGNMENT  or  VENDOR'S  LIEN.] 

UNLESS  an  express  contract  can  be  shown  for  the  transfer  of  the  vendor's  lien, 
it  will  not  pass  to  the  assignee  simply  upon  the  footing  of  the  assignment  of 
the  debt. 

There  are  cases  in  which  the  benefit  of  the  vendor's  lien  has  been  extended  to 
third  persons  ;  but  they  are  cases  in  which  the  principle  of  marshalling  as- 
sets has  led  to  such  results,  or  where  sureties,  who  have  been  compelled  to 
pay  for  their  principals,  have  been,  by  substitution,  clothed  with  all  the 
rights  and  remedies  of  those  whose  debts  they  paid. 

There  has  been  no  case  found  where  the  assignee  of  a  note  or  other  security, 
given  for  the  purchase  money  of  land,  has  been  permitted  to  sustain  a  claim  of 
this  description  on  an  implied  agreement  to  assign  the  lien,  though  cases  may 
be  found,  in  which,  by  express  agreement,  the  lien  has  passed  to  the  assignee  of 
the  bond  or  note. 

The  lien  being  intended  to  secure  the  payment  of  the  purchase  money  to  the 
vendor,  an  assignment  of  the  notes  or  bonds  given  therefor,  without  respon- 
sibility, and  for  value,  is  equivalent  to  payment  and  extinguishes  the  lien. 

[This  cause  was  brought  to  a  hearing,  and  argued  on  excep- 
tions to  the  Auditor's  report,  the  main  point  at  issue  being 
whether  the  assignee  of  a  bond  given  for  the  purchase  money 
of  land  conveyed  by  the  vendor  to  the  vendee,  can  claim  the 
benefit  of  the  equitable  lien  of  the  vendor,  without  any  express 
agreement  for  the  transfer  of  such  lien,  to  the  prejudice  of  the 
creditors  of  the  vendee. 

On  the  25th  of  August,  1841,  Noah  Dixon,  executed  two 
single  bills  to  John  W.  Martin,  to  secure  the  payment  of  the  pur- 
chase money  of  land  sold  by  Martin  to  said  Dixon,  which  were 
by  said  Martin  assigned  to  the  present  holder,  on  the  25th  June, 
1842,  with  guarantee  of  payment.  The  land  was  conveyed  to 
said  Dixon  on  the  llth  October,  1841,  who  died  in  1844,  leav- 
ing an  estate  inadequate  to  pay  all  the  claims  against  it,  al- 
though he  was  in  solvent  circumstances  at  the  time  of  the  as- 
signment, which  took  place  on  the  25th  of  June,  1842.  One 
of  the  bonds  became  due  in  August,  1843,  and  the  other  in 
August,  1844,  but  no  evidence  was  produced  of  any  proceed- 


DIXON  VS.  DIXON.  221 

ings  to  collect  them  from  the  obligor  until  they  were  filed  in 
in  this  case  in  March,  1847. 

After  referring  to  the  case  of  Repp  vs.  Repp,  12  G.  fy  J.,  341 ; 
to  show  that  the  lien  would  have  existed  for  the  security  of  the 
vendor,  notwithstanding  the  conveyance  of  the  claims  had  not 
been  assigned.  The  Chancellor  goes  on  to  say  :] 

THE  CHANCELLOR: 

But  in  this  case  the  claims  have  been  assigned,  and  it  is  in- 
sisted that  the  equitable  lien  of  the  vendor  passed  to  the  as- 
signee by  virtue  of  the  assignment. 

No  case  has  been,  or  as  it  is  believed  can  be,  found,  estab- 
lishing this  proposition  to  the  extent  contended  for  here,  and 
the  opinion  of  the  late  Chancellor  was  directly  against  it.  Igle- 
hart  vs.  Jlrmiger,  1  Bland,  519. 

[After  alluding  to  the  case  of  Schnebly  and  Lewis  vs.  Ragan, 
7  G  if  /.,  120,  in  which  the  Court  of  Appeals  of  this  state  in 
reviewing  the  opinion  of  the  court  in  1  Ohio  Rep.,  318,  decid- 
ing that  the  vendor's  lien  is  an  equity  that  arises  to  the  vendor 
for  his  own  safety,  but  cannot  be  transferred  to  another,  say  : 
"we  are  not,  however,  prepared  to  go  to  the  full  extent  of  this 
decision,  if  the  court  meant  to  say,  that  the  assignees  could  not 
obtain  the  benefit  of  this  lien  by  express  contract."  The  Chan- 
cellor continues :] 

It  is  certainly  fairly  inferrible,  however,  that  the  Court  of  Ap- 
peals meant  to  give  their  sanction  to  the  decision  in  Ohio  with 
that  qualification  only,  and  that  unless  an  express  contract  could 
be  shown  for  the  transfer  of  the  lien,  it  would  not  pass  to  the 
assignee  simply  upon  the  footing  of  the  assignment  of  the  debt. 

Cases  have,  or  may  be  referred  to,  in  which  the  benefit  of  the 
vendor's  lien  has  been  extended  to  third  persons,  but  these 
cases  are  supposed  to  rest  upon  principles  entirely  distinguish- 
able from  the  present.  They  are  cases  in  which  the  principle 
of  marshalling  assets  has  led  to  this  result,  as  shown  in  3  Sug- 
dens'  Vendors,  138,  &c.,  or  in  which  securities  who  have  been 
compelled  to  pay  for  their  principals,  have  been,  by  substitution, 
19* 


222  HIGH  COURT  OF  CHANCERY. 

clothed  with  all  the  rights  and  remedies  of  those  whose  debts 
they  paid.  The  case  of  Hollingsworth  vs.  Floyd,  2  H.  fy  G., 
87,  furnishes  an  illustration  of  this  principle,  and  shows,  that 
under  the  act  of  1763,  chap.  23,  a  surety  paying  is  entitled  to 
an  assignment  from  the  creditor,  and  that  upon  the  established 
principles  of  equity,  he,  the  surety,  is  entitled  to  call  on  the 
creditor,  not  only  for  an  assignment  of  the  claim,  but  likewise 
of  all  the  liens^which  the  principal  debtor  may  have  given  him. 
The  same  doctrine  is  maintained  by  the  Court  of  Appeals  in 
Ghiselin  and  Worthington  vs.  Fergusson,  4  H.  fy  J.,  522. 
I  The  Chancellor  in  White  vs.  Williams,  1  Paige,  502,  said, 
he  was  not  aware  of  any  case  where  the  assignee  of  a  note  or 
other  security,  given  for  the  purchase  money  of  land,  has  been 
permitted  to  sustain  a  claim  of  this  description  on  an  implied 
agreement  to  assign  the  lien.  Cases  may  be  found  in  which, 
by  express  agreement,  the  lien  has  passed  to  the  assignee  of  the 
bond  or  note,  but  I  very  much  question  if  any  research  will 
discover  a  case  going  further,  and  in  which  it  has  been  decided 
that  a  third  party,  not  connected  with  the  original  transaction 
as  a  surety,  is  entitled  to  the  vendor's  lien  simply  upon  the 
ground  of  an  assignment  of  the  debt. 

Apart,  however,  from  the  doctrine  that  the  equitable  lien  of 
the  vendor  does  not  pass  by  a  mere  assignment  of  the  bond  or 
note,  it  is  thought  the  lien  cannot  be  set  up  in  this  case,  upon 
another  and  distinct  ground.  The  Court  of  Appeals  in  Schneb- 
ly  and  Lewis  vs.  Ragan,  place  their  decision  upon  the  ground 
that  the  vendor,  by  the  terms  of  the  assignment  in  that  case, 
was  not  responsible  for  the  payment  of  the  notes,  and  that,  con- 
sequently, as  to  him  it  amounts  to  a  payment,  a  satisfaction  of 
the  claim.  The  lien  being  intended,  as  they  say,  to  secure  the 
payment  of  the  purchase  money  to  the  vendor,  an  assignment 
without  responsibility  and  for  value,  is  equivalent  to  payment 
and  extinguishes  the  lien.  It  would  hence  follow  in  this  case, 
that  if  Martin,  the  vendor,  is  not  now  responsible  for  this  money, 
being  discharged  therefrom  by  the  neglect  of  the  assignee,  to 
use  due  diligence  for  its  collection,  or  from  any  other  cause,  the 
lien  would  be  gone,  it  existing  for  the  security  of  the  vendor, 
and  continuing  only  so  long  as  may  be  required  for  that  purpose. 


CECIL  VS.   DORSEY.  223 

[The  Chancellor  after  applying  the  principles  laid  down  in 
Boyer  vs.  Turner,  3  H.  Of  J.,  285,  and  Lewis,  use  of  Ringgold's 
admr's  vs.  HoblitzeWs  admr's,  6  G.  &  /.,  260,  to  the  facts  of 
this  case  as  stated  above,  to  show  neglect  on  the  part  of  the 
assignee,  in  consequence  of  which  and  in  the  absence  of  any 
excuse,  there  could  be  no  recovery,  against  the  assignor,  goes 
on  to  say  :] 

It  would,  therefore,  seem  to  follow,  that  no  recovery  could 
be  had  upon  these  notes  against  Martin,  the  assignor,  and  that, 
consequently,  the  claim,  as  to  him,  must  be  regarded  as  satis- 
fied, and  the  lien  of  the  vendor  extinguished.  That  lien  ex- 
isting for  his  security,  this  view  of  the  case,  brings  it  expressly, 
within  the  principle  decided  by  the  Court  of  Appeals,  in  Schneb- 
ly  and  Lewis  vs.  Ragan,  before  referred  to. 

[No  appeal  was  taken  from  this  decree.] 


OWEN  CECIL 

vs.  £>     MARCH  TERM,  1848. 

MARY  ANN  DORSEY  ET  AL._ 

[PARTITION — RETURN  OF  COMMISSIONERS — PRACTICE.] 

AN  objection  to  a  return  made  upon  a  commissioner  for  partition,  that  the 
commissioners  did  not  distribute  the  estate  by  lot,  but  at  their  own  discretion, 
assigned  the  several  shares  to  the  parties  interested,  cannot  be  sustained, 
either  by  the  practice  of  the  court,  the  act  of  Assembly,  or  the  rule  of  the 
English  Court  of  Chancery  in  similar  cases. 

When  partition  is  made  by  agreement  of  parties,  one  of  the  modes  known  to 
the  common  law  is,  by  drawing  lots  ;  but,  there  is  no  authority  for  saying, 
that  when  a  compulsory  partition  is  made  by  judicial  process,  recourse  must 
be  had  to  lots  to  determine  the  portion  which  each  party  is  to  take. 

The  legislature  did  not  mean  to  confine  the  commissioners  to  a  particular  mode 
of  making  the  partition  ;  they  may,  if  they  please,  award  to  each  of  the  par- 
ties his  share  of  the  thing  to  be  divided,  or  they  may,  at  the  proper  stage  of 
the  proceedings,  draw  lots  ;  and  their  return,  otherwise  unexceptionable, 
will  not  be  set  aside  because  they  have  adopted  either  of  these  modes. 

It  is  a  fatal  objection  to  a  return,  that  the  value  of  the  estate,  in  money,  has 
not  been  stated  by  the  commissioners. 


224  HIGH    COURT  OF    CHANCERY. 

• 

The  clause  directing  the  commissioners  to  take  evidence  should  be  added  to  the 
form  of  the  commission. 

The  act  of  Assembly  requiring  thirty  days  notice  of  the  execution  of  the  com- 
mission to  be  given,  is  not  complied  with  by  stating  in  the  return,  that  reason- 
able notice  was  given  ;  but  the  commissioners  must  say  in  their  return,  either 
that  they  gave  at  least  thirty  days  notice,  or  due  notice,  according  to  law. 

[A  partition  having  been  decreed  between  the  parties  to  this 
cause,  (other  than  Mary  Ann  Dorsey,)  a  commission  was  is- 
sued for  that  purpose,  and  return  made  thereon,  to  which  latter 
various  objections  have  been  raised,  and  their  merits  argued 
before  the  Chancellor. 

The  most  prominent  objections  taken,  were : 

The  assignment  of  the  shares  to  the  several  parties  interested, 
by  the  commissioners  themselves,  without  ballot. 

The  omission  on  the  part  of  the  commissioners  to  ascertain 
and  return  the  value  of  the  whole  estate  to  be  divided,  and  that 
of  the  several  parts  as  laid  off  by  them,  or  its  value,  subject  to 
the  incumbrance  of  the  widow's  dower. 

And  '"the  want  of  due  notice  to  the  complainant  of  the  execu- 
tion of  the  commission. 

In  considering  the  first  of  these,  the  Chancellor  says  :] 

THE  CHANCELLOR  : 

This  objection,  it  seems  to  me,  cannot  be  sustained,  whether 
we  regard  the  practice  of  the  court,  the  act  of  assembly,  or  the 
rule  of  the  English  Court  of  Chancery  in  similar  cases. 

To  whatever  source  we  are  to  trace  the  jurisdiction  of  the 
Chancery  Court  of  England  in  cases  of  partition,  and  that  there 
is  some  obscurity  in  regard  to  it  is  very  manifest,  it  never  seems 
to  have  been  the  duty  of  the  agents  employed  by  the  court  for 
the  purpose,  to  distribute  the  estate  to  be  divided,  by  lot.  On 
the  contrary,  the  general  practice  has  been  for  the  commission- 
ers themselves  to  assign  to  each  of  the  parties  his  share  of  the 
estate.  Mlnutt  on  Partition^  88,  89. 

This  not  only  appears  from  the  observations  of  the  authors, 
but  from  the  form  of  the  commission,  and  the  return  of  the  com- 
missioners to  the  Chancellor,  as  is  shown  by  the  precedents  at 
pages  210,  211,  212,  of  the  same  book. 


CECIL  VS.  DORSEY.  225 

It  is  true,  that  when  partition  is  made  by  agreement  of  par- 
ties, one  of  the  modes  known  to  the  common  law  is,  by  draw- 
ing lots,  and  the  course  of  proceeding  in  such  cases,  is  pointed 
out  in  Coke  Littleton,  167,  a.  This  is  when  the  parties  agree 
that  partition  shall  be  made,  but  do  not  agree  as  to  the  division 
of  the  separated  parts,  which  each  shall  take;  but  I  do  not  find 
any  authority  for  saying,  that  when  a  compulsory  partition  is 
made  by  judicial  proceedings,  recourse  must  be  had  to  lots,  or 
ballots,  to  determine  the  portion  which  each  is  to  take ;  on  the 
contrary,  it  appears  to  be  very  clear,  that  the  officers  employed 
by  the  law  for  this  purpose,  are  clothed  with  full  authority  to 
make  partition  among  the  parties,  in  the  exercise  of  a  sound 
discretion. 

Upon  the  common  law  writ  de  partitione  facienda,  the  sheriff, 
by  the  oath  of  a  jury,  makes  partition,  and  assigns  to  each  party 
his  share  of  the  estate.  Coke,  168,  b.  Jlllnutt  on  Partition,  70, 
71. 

And  the  inquisition  of  the  partition  thus  made,  is  returned  by 
the  sheriff  under  his  seal,  and  the  seals  of  the  jurors,  which, 
when  confirmed  by  the  court,  is  final ;  the  judgment  under 
which  the  writ  issued  being  only  interlocutory.  Jlllnutt,  173. 

In  truth,  the  proceedings  at  common  law  under  the  writ  of 
partition,  and  the  proceedings  by  bill  in  equity  in  this  state, 
have  a  near  resemblance,  the  only  material  difference  being,  the 
substitution  of  commissioners  for  the  jury  of  view,  according  to 
the  course  of  the  common  law. 

[The  Chancellor  after  referring  to  the  case  of  Corse  vs.  Polk, 
wherein  a  similar  objection  was  disallowed  by  the  then  Chan- 
cellor, (Kilty,)  proceeds :] 

Cases  have  been  laid  before  me,  in  which  the  commissioners 
appointed  by  this  court,  have  made  partition  by  lot,  but  in  these 
same  cases,  they  have  also  made  the  assignment  of  other  par- 
cels of  the  estate,  in  the  exercise  of  their  own  discretion ;  the 
case  of  Dorsey  vs.  Dorsey  decided  in  1829,  is  one  of  this  des- 
cription. 


226  HIGH  COURT  OF  CHANCEilY. 

In  Jones  vs.  Tottey,  2  Cond.  Cfi,  Rep.,  69,  partition  among 
tenants  in  common,  was  made  by  lot,  but  appears  to  have  pro- 
ceeded from  the  act  of  the  parties,  and  not  because  the  com- 
missioners supposed  themselves  restricted  to  that  mode.  In 
the  subsequent  case  of  Manners  vs.  Charlesworth,  8  Cond.  Ch. 
Rep.,  376,  the  commissioners  themselves  awarded  to  each  party 
his  share  of  the  estate,  and  though  their  proceedings  were  most 
narrowly  scrutinized,  no  objection  on  this  account  appears  to 
have  been  urged. 

[After  referring  to  a  recent  case  in  the  Court  of  Appeals,  in 
which  it  was  decided,  that  the  proceedings  in  this  court  for  a 
partition,  must  as  far  as  practicable  conform  to  the  act  to  direct 
descents,  of  1820,  ch.  191,  and  commenting  upon  the  true  con- 
struction of  that  portion  of  the  act  relating  to  the  distribution 
of  the  shares  ;  the  Chancellor  continues  :] 

Upon  the  whole,  my  opinion  is,  that  the  legislature  did  not 
mean  to  confine  the  commissioners  to  a  particular  mode  of  mak- 
ing the  partition  ;  they  may,  if  they  please,  award  to  each  of  the 
parties  his  share  of  the  thing  to  be  divided,  or  if  they  choose, 
they  may,  at  the  proper  stage  of  the  proceedings,  draw  lots  ;, 
and  that  their  return,  if  otherwise  unexceptionable,  will  not  be 
set  aside,  because  of  the  adoption  by  them  of  either  of  those 
modes. 

[To  the  objection,  that  the  value  of  the  estate  in  money  had 
not  been  stated  in  the  return  of  the  commissioners ;  the  Chan- 
cellor after  citing  portions  of  the  8th,  10th  and  12th  sections 
of  the  act  of  1820,  chap.  191,  requiring  the  same  to  be  ascer- 
tained by  them,  and  a  return  to  be  made  of  all  their  proceed- 
ings to  the  court,  for  ratification  or  rejection  ;  and  deciding, 
that  a  statement  of  the  value  thereof,  signed  by  three  of  them, 
which  was  sometime  afterwards  filed,  but  neither  referring  to, 
or  in  any  way  incorporated  with  their  return,  could  not  be  con- 
sidered part  of  the  same,  continues  :] 


CECIL  VS.  DORSEY.  227 

It  seems  to  me,  to  be  quite  apparent,  that  the  revising  power 
of  this  court,  cannot  be  wisely  exercised,  and  the  return   rati- 
fied or  rejected  as  justice  shall  dictate,  unless  the  value  of  the 
whole  estate,  and  the  value  of  the  several  parts,  as  ascertained 
by  the  commissioners,  is  reported.     The  great  object  to  be  at- 
tained, is  a  partition  among   the  parties   interested,  fairly  and 
equally  in  value,  according  to  their   several  just   proportions, 
and  I  cannot  understand  how   the  court   can  see ,  that  this   is 
done,  if  the  commissioners,  may,  or  may  not,  show  by  their  re- 
turn, the  value  they  have  put  upon  the   entire    estate,  and    of 
each  part  thereof.     The  commission  in  this  case,  did'not  direct 
the  commissioners  to  take  evidence,  and  in  that  respect,  as  is 
usual,  conforming  to  the  interlocutory  decree,  but  my  opinion 
is,  that  the  clause  added  to  the  form  of  commissions  by  the  late 
Chancellor,  and  to  be  found  in  the    Maryland  Chancery  Prac- 
tice, 323,  should  be  always  added.     With  regard  to  the  power 
which  it  gives,  to  take  the  depositions  of  witnesses,  it  will  be 
found  to  agree  with  the  English  precedents.    Jlllnutt  on  Parti- 
tion, 212';  Manners  vs.  Charlesworth,  8  Eng.  Cond.  Ch.  Rep., 
377. 

I  cannot  bring  myself  to  think,  that  the  legislature  intended 
to  refer  so  important  a  matter,  as  the  value  of  the  estate,  exclu- 
sively to  the  judgment  of  the  commissioners.  They  are  to  as- 
certain its  value,  and  if  incumbered,  then  its  value  subject  to 
the  incurabrance,  and  to  do  this,  it  is  indispensable  they  should 
have  authority  to  examine  witnesses,  and  the  depositions  of 
these  witnesses,  as  a  part  of  their  proceedings,  are  to  be  return- 
ed to  the  court,  that  an  enlightened  judgment  may  be  formed 
upon  the  question  of  ratification  or  rejection. 

The  court,  it  is  true,  reposes  great  confidence  in  the  judgment 
of  the  commissioners,  who,  according  to  Lord  Broughamj  are 
viewed  in  the  capacity  of  witnesses,  as  well  as  arbitrators,  but, 
to  enable  them  to  discharge  their  important  and  delicate  func- 
tions, satisfactorily  and  safely,  they  should  be  clothed  with  the 
supplementary  power  of  calling  for  the  testimony  of  others,  and 
then,  that  the  court  may  see,  that  the  conclusion  to  which  they 
come  upon  their  own  personal  observation,  and  upon  the  testi- 


228  HIGH  COURT  OF  CHANCERY. 

mony  of  others,  is  in  accordance  with  the  justice  of  the  case, 
these  depositions  are  to  be  returned  with  their  proceedings,  to 
the  source  from  whence  they  derive  their  authority. 

[The  Chancellor  then  proceeds  to  the  consideration  of  the 
objection  made  to  the  return  of  the  commissioners,  for  want  of 
due  notice,  of  the  execution  of  the  commission.  After  refer- 
ring to  the  14th  and  51st  sections  of  the  act  of  1820,  chapter 
191,  the  one  requiring  thirty  days  notice  of  the  execution  of  the 
commission  to  be  given,  and  the  other  declaring  a  statement  in 
the  proceedings,  that  due  notice  was  given  according  to  law, 
to  be  prima  facie  evidence  of  the  same,  and  noting  the  fact  of 
its  having  been  stated  in  the  return,  that  reasonable  notice  only 
was  given,  he  continues  :] 

I  do  not  think  this  a  compliance  with  the  act  of  assembly, 
nor  do  I  think  there  is  any  thing  in  the  proceedings,  or  proof, 
which  can  break  the  force  of  this  objection.  The  notice  re- 
quired by  the  act  of  assembly,  and  the  notice,  which  may,  in 
the  judgment  of  the  commissioners,  be  reasonable,  are  very 
different  things.  They  must  say,  either  that  they  gave  at  least 
.  thirty  days  notice,  or  due  notice  according  to  law,  (which  is 
the  same  thing  substantially,)  or  to  that  effect,  or  their  proceed- 
ings do  not  conform  to  the  law.  To  say  that  the  statement, 
that  reasonable  notice  was  given,  is  sufficient,  would  be  to  refer 
to  the  opinion  of  commissioners  in  each  particular  case,  the 
reasonableness  of  the  notice.  It  will  readily  be  seen,  how 
variable  a  practice  this  would  introduce  ;  the  extent  of  the  no- 
tice in  each  case,  depending  upon  the  discretion  of  the  com- 
missioners, instead  of  the  direction  of  the  law. 

[No  appeal  was  taken  in  this  case.] 


DUVALL  VS.  SPEED.  229 


EDWIN  W.  DUVALL  AND     ^ 

PETER  SAUSSAR  • 

vs.  I      JULY  TERM,  1848. 

JOSEPH  J.  SPEED  AND 
JOSIAS    PEITNINGTON.         j 

[TRUSTEES  UNDER  THE  INSOLVENT  LAWS — SALES  BY — JUDGMENT— LIEN  OF.] 

A  TRUSTEE  selling  under  a  decree  of  the  Court  of  Chancery,  as  a  general  rule, 
sells  the  title  of  the  parties  to  the  suit,  and  nothing  more  ;  and  though  a  pur-  x 
chaser,  discovering  a  defect  in  his  title  at  the  proper  time,  may  be  relieved 
from  his  purchase  by  askingfor  arescision  of  the  sale,  he  cannot  be  permitted, 
whilst  holding  on  to  his  purchase,  to  insist  upon  having  his  title  perfected  by 
the  application  of  the  proceeds  of  sale,  to  the  extinguishment  of  the  claims 
of  incumbrances,  not  parties  to  the  suit. 

A  judgment  creditor  not  a  party  to  the  suit,  is  not  bound  to  seek  payment  out 
of  the  proceeds  of  sales  in  the  hands  of  the  trustee,  but  may  prosecute  his 
lien  against  the  property,  after  its  conveyance  to  the  purchaser. 

The  fact,  that  the  trustee  of  an  insolvent  debtor  was  a  party  to  the  suit,  does 
not  dispense  with  the  necessity  of  making  the  creditors  themselves  parties. 

[At  the  October  term,  1840,  of  Anne  Arundel  County  Court, 
a  judgment  was  rendered  in  favor  of  James  Dunn  and  John 
Sloan,  for  the  use  of  J.  J.  Speed  and  J.  Pennington,  as  trustees 
and  receivers,  against  one  Vachel  Sevier,  for  the  sum  of  $300, 
with  interest  thereon,  from  the  14th  December,  1840,  the  day 
on  which  the  judgment  was  signed,  and  costs  ;  upon  this 
judgment  a  writ  of  fieri  facias  was  sued  out,  and  duly  returned 
by  the  sheriff  at  April  term,  1841,  as  partially  satisfied  and 
"nulla  bona"  the  residue. 

On  the  17th  May,  1843,  Vachel  Sevier  and  wife,  executed  a 
mortgage  of  certain  houses  and  lots,  in  the  city  of  Annapolis, 
of  which  he  was  seized  in  fee  at  the  time  of  the  rendition  of  the 
above  judgment,  together  with  other  real  property,  in  favor  of 
one  John  T.  Hodges,  to  secure  to  him  the  payment  of  a  large 
sum  of  money,  and  on  the  13th  November,  1844,  the  said 
Hodges,  filed  in  the  High  Court  of  Chancery  his  bill  of  com- 
plaint, against  Sevier  and  wife,  praying  a  sale  of  the  mortgaged 
premises  for  the  payment  of  his  debt.  Before  the.  defendants 
answered  this  bill,  viz.  on  the  22d  October,  1845,  Sevier  ap- 
VOL.  i—20 


230  HIGH  COURT  OF  CHANCERY. 

plied  for  the  benefit  of  the  insolvent  laws,  and  one  Gabriel  H. 
Duvall  was  on  that  day  appointed  trustee,  for  the  benefit  of  his 
creditors  ;  gave  bond  as  such,  and  received  a  deed  from  the 
said  Sevier  :  although  no  property  whatever  was  returned  in 
the  schedule  of  said  Sevier  at  the  time  of  his  application,  and 
none,  in  point  of  fact,  ever  came  into  the  possession  of  his 
trustee.  On  the  16th  of  September,  1846,  John  T.  Hodges 
filed  an  amended  bill  against  Sevier  and  wife,  and  the  said 
Duvall,  alleging,  "that  subsequent  to  the  date  of  the  mortgage 
to  him,  the  said  Sevier  had  conveyed,  or  assigned,  all  his  re- 
maining interest  or  equity  of  redemption  in  the  said  mortgaged 
premises,  to  the  said  Duvall,  as  his  trustee,  under  the  insolvent 
laws,  the  benefit  of  which  the  said  Sevier  then  proposed  to 
take,  and  praying  such  relief  against  the  said  defendants,  as 
was  prayed  in  his  original  bill,  and  the  answers  having  been 
filed  admitting  the  facts  as  stated,  the  cause  was  so  proceeded 
in,  that  on  the  18th  January,  1847,  a  decree  was  passed  for  the 
sale  of  the  mortgaged  premises,  Duvall,  the  trustee,  uniting 
with  the  solicitor,  for  the  said  Hodges,  in  a  request  that  the 
same  might  be  signed.  On  the  15th  February,  1847,  the  com- 
plainants, Duvall  and  Saussar,  purchased  from  the  trustee  ap- 
pointed by  the  said  decree,  the  houses  and  lots  in  the  city  of 
Annapolis,  mentioned  in  the  said  mortgage,  complied  with  the 
terms  of  sale,  and  entered  into  possession  thereof. 

It  having  become  necessary,  from  lapse  of  time,  the  defend- 
ants, Speed  and  Pennington,  caused  a  scire  facias  to  be  issued 
on  their  judgment,  against  Vachel  Sevier,  the  defendant  therein, 
returnable  to  October  term,  1845,  of  Anne  Arundel  County 
Court,  and  while  proceedings  upon  their  scire  facias  were  still 
pending — before  a  fiat  was  obtained  thereon,  and  before  the 
final  ratification  of  the  sales  made,  as  aforesaid,  to  the  said 
Duvall  and  Saussar,  viz.  on  the  29th  April,  1847,  filed  in  the 
case  of  Hodges  vs.  Sevier  and  others,  their  petition,  praying, 
among  other  things,  -that  their  judgment  might  be  satisfied, 
out  of  the  purchase  money,  in  the  hands  of  the  trustee,  appoint- 
ed by  the  decree  in  the  said  cause,  before  the  application  of  any 
portion  thereof,  to  the  mortgage  debt  of  the  complainant, 


DUVALL  VS.  SPEED.  231 

Hodges,  upon  the  ground,  that  their  judgment  was  a  prior  lien 
upon  the  real  estate  mortgaged  to  said  Hodges ;  which  petition 
was,  after  argument,  dismissed  on  the  5th  June,  1847,  because 
"proceedings  were  still  pending  to  revive  the  judgment,  and 
until  a  fiat  was  obtained,  it  must  be  presumed  to  have  been 
executed  or  satisfied."  On  the  28th  June,  1847,  the  sales 
were  finally  ratified,  no  objections  having  been  filed,  and  on  the 
30th  July,  1847,  an  order  passed,  confirming  an  auditor's  re- 
port, by  which  the  entire  net  proceeds,  were  applied  to  the 
payment  in  part  of  the  mortgage  debt  of  the  complainant, 
Hodges. 

At  the  October  term,  1847,  of  Anne  Arundel  County  Court, 
a  fiat  was  duly  entered  upon  the  scire  facias,  which  had  issued 
to  revive  the  judgment  in  favor  of  Speed  and  Pennington,  sub- 
ject to  Sevier's  discharge  under  the  insolvent  laws,  and  an 
execution  of  fieri  facias,  was  subsequently  sued  out  upon  the 
judgment  so  revived,  and  duly  levied  upon  the  houses  and  lots 
in  the  city  of  Annapolis,  which  had  been  purchased  by  the 
complainants,  Duvall  and  Saussar. 

After  this  execution  had  been  levied,  Duvall  and  Saussar, 
on  the  15th  of  January,  1848,  filed,  in  the  case  of  Hodges  vs. 
Sevier  and  others,  a  petition,  praying,  that  the  judgment  in 
favor  of  Speed  and  Pennington,  then  about  to  be  enforced 
against  the  property  purchased  by  them,  might  be  paid  out  of 
the  funds,  in  the  hands  of  the  trustee  who  made  the  sales,  or 
that  they  might  be  authorized  to  pay  it,  and  have  the  amount 
so  paid,  discounted  from  the  purchase  money  thereafter  to  be- 
come due  from  them.  To  this  petition,  an  answer  was  filed 
by  Hodges,  the  mortgagee,  objecting  to  the  relief  sought, 
upon  the  ground,  that  the  petitioners  purchased  without  any 
warranty  of  title,  and  insisting,  that  if  the  court  could  interfere 
in  behalf  of  the  purchasers,  it  should  do  so  by  rescinding  the 
sale,  and  as  the  property  sold  very  low,  giving  him  an  oppor- 
tunity to  secure  a  larger  portion,  or  the  whole  of  his  debt. 
The  matter  of  this  petition,  was  argued  by  counsel,  and  on  the 
6th  March,  1848,  an  order  was  passed  dismissing  the  petition, 
and  an  opinion  filed  by  Johnson,  Chancellor,  from  which  the 
following  extracts  are  taken  : 


232  HIGH  COURT  OF  CHANCERY. 

"The  answer  of  Hodges,  the  mortgagee,  to  this  petition, 
states,  among  other  reasons  in  opposition  to  its  prayer,  that 
the  property  purchased  by  the  petitioner,  sold  very  low,  and 
that,  he  believes,  it  could  now  be  sold  for  more  than  will  satisfy 
the  purchase  money,  and  the  amount  of  the  judgment  of  Speed 
and  Pennington,  and,  that  if  this  court  is  disposed  to  interfere 
in  any  way,  it  should  be  by  setting  aside  the  sale,  and  putting 
the  property  again  in  the  market.  But  this  form  of  relief,  it  is 
understood,  the  purchasers  are  opposed  to." 

"The  property  was  sold  to  satisfy  a  mortgage,  dated  on  the 
17th  May,  1843,  under  a  decree  passed  upon  a  bill  filed  by  the 
mortgagee  against  the  mortgagors,  for  a  foreclosure  and  sale  ; 
and  the  question  is,  whether  a  purchaser  at  such  a  sale  has  a 
right  to  insist  that  all  prior  incumbrances  should  be  removed, 
so  that  he  shall  receive  a  clear  title,  and  further,  that  the  right 
so  to  insist,  continues  after  the  sale  has  been  finally  ratified, 
and  the  proceeds  actually  appropriated  to  the  payment  of  the 
mortgage  debt,  by  an  order  of  the  court." 

After  an  examination  of  the  authorities,  cited  in  argument : 
Glenn  vs.  Clapp,  11  Gill  fy  Johns.,  10;  Brooke  vs.  Brooke 
and  others,  12  Gill  fy  Johns.,  306  ;  Bell  vs.  Brown's  adm'r,  3 
Harris  fy  Johns.,  484;  Ellicott  vs.  Ellicott  et  al.,  6  Gill  Sf 
Johns.,  35,  to  show  that  they  did  not  prevent  the  strict  appli- 
cation of  the  rule,  caveat  emptor,  in  the  present  case,  "the  sale 
having  been  conducted  by  the  trustee  in  the  ordinary  way, 
without  any  stipulation  in  regard  to  the  title,  other  than  that 
which  resulted  from  the  decree  under  which  he  acted,"  the 
Chancellor  proceeds  :] 

THE  CHANCELLOR  : 

If  the  doctrine  contended  for  by  the  solicitor  for  the  petition- 
ers be  sound,  and  the  court  is  bound  to  disencumber  the  title 
of  all  liens,  it  might  sometimes  find  itself  in  an  embarrassing 
situation,  and  unable  to  do  what  the  purchaser  has  a  right  to  re- 
quire. In  the  case  of  Ellicott  vs.  Ellicott,  already  referred  to, 
the  court  said,  the  mortgagees  who  were  not  made  parties  to 
the  bill,  "were  not  bound  to  come  in  and  seek  payment  under 


DUVAL   VS.  SPEED.  233 

the  proceedings  in  the  Chancery  Court,  for  the  sale  of  the  de- 
ceased's real  estate,  but  might  cling  to  the  property  specifically 
pledged  for  the  payment  of  their  debt,  and  hold  on  until  they 
were  fully  paid,  both  principal  and  interest."  But  if  the  court 
is  bound  under  all  circumstances,  when  the  money  is  within  its 
control,  to  clear  the  title,  it  must  have  power  to  bring  in  the  in- 
cumbrancers,  whether  they  are  willing  or  not,  and  thus  deprive 
them  of  the  right  to  stand  out,  and  to  cling  to  the  property, 
which,  as  has  been  shown,  the  Court  of  Appeals  say,  they  are 
entitled  to  do,  and  thus  it  might  happen  that  the  court  would 
be  under  an  obligation  to  do  that  which  it  could  not  do,  with- 
out trenching  upon  the  recognised  rights  of  parties,  not  parties 
to  the  cause  when  the  decree  passed.  Chancellor  Hanson,  in 
the  case  of  Miller  vs.  Baker,  reported  in  1  Bland,  147,  in  the 
note,  admits  that  the  vendor  of  the  estate  sold  under  the  decree 
in  that  case,  could  not  be  compelled  to  receive  his  money,  un- 
less he  exhibited  his  claim,  or  was  called  to  answer  a  bill  or 
petition  for  a  conveyance,  and  of  course  concedes,  that  the 
court  had  no  power  by  any  proceeding  in  that  case,  to  clear  the 
title. 

There  is,  moreover,  another  very  strong  objection  to  the  prayer 
of  this  petition. 

When  the  order  of  the  5th  June  was  passed,  dismissing  the 
petition  of  Speed  and  Pennington,  asking  for  the  payment  of 
this  same  judgment,  out  of  the  proceeds  of  the  sales  of  the 
property  in  this  case,  the  trustee's  report  of  the  sales  had  not 
been  ratified,  and  of  course  no  appropriation  had  been  made  of 
the  purchase  money. 

But  since  then,  to  wit,  on  the  28th  of  the  same  month,  the 
final  order  of  ratification  passed,  and  on  the  30th  July,  follow- 
ing, the  Auditor's  report,  appropriating  the  net  proceeds  of  the 
sale  to  the  payment  of  the  claim  of  the  mortgagee,  in  part, 
leaving  still  a  considerable  sum  due  him,  was  also  ratified,  and 
the  money  directed  to  be  so  applied.  It  was  not  until  the  15th 
of  January  last,  nearly  six  months  after  the  ratification  of  the 
report  of  the  auditor,  giving  this  direction  to  the  money,  that 
the  present  petition  was  filed,  which  seeks,  so  far  as  the  pay- 
20* 


234  HIGH  COURT  OF    CHANCERY. 

ment  of  the  judgment  is  concerned,  to  reverse  that  order.  This 
strikes  me  as  presenting  a  very  serious  difficulty,  though  as  I  am 
of  opinion,  that  upon  other  grounds  the  prayer  of  this  petition 
cannot  be  granted,  I  do  not  now  propose  to  express  a  decided 
opinion  upon  it. 

It  was  suggested  in  the  course  of  the  argument,  that  the  in- 
solvency of  Sevier,  the  mortgagor,  and  the  appointment  of  a 
trustee  for  the  benefit  of  his  creditors,  might  have  some  influ- 
ence upon  these  proceedings.  But  as  this  trustee  was  made  a 
party  to  the  bill  by  amendment,  and  consented  to  a  decree,  and 
a  sale  has  actually  been  made  and  reported  and  finally  ratified 
by  the  court,  I  cannot  think  the  proceedings  can  now  be  ques- 
tioned upon  this  ground. 

An  order  will  be  passed  dismissing  the  petition. 

[On  the  llth  of  April,  1848,  Duvall  and  Saussar  filed  their 
bill,  praying  an  injunction  against  Speed  and  Pennington,  who 
were  proceeding  to  enforce  their  judgment  against  the  property 
purchased  by  complainants,  upon  the  ground  that  they  pur- 
chased free,  clear  and  discharged  of  all  claim  of  the  parties  to 
the  suit  of  Hodges  vs.  Sevier  and  others — that  Duvall,  the 
trustee,  was  a  party  thereto,  and,  as  such,  represented  the  judg- 
ment creditors,  who  could  not,  therefore,  proceed  again  to  sell 
property  which  had  already  been  sold  by  their  agent,  the  said 
trustee  ;  that  all  the  interest  of  Sevier  was  sold,  and  the  pro- 
ceeds, if  any,  were  due  and  payable  to  the  trustee,  Duvall,  for 
the  benefit  of  his  creditors,  and  against  this  fund,  alone,  in  the 
hands  of  the  trustee,  could  the  judgment  creditors  proceed,  ac- 
cording to  the  acts  of  assembly  in  such  case  made  and  provided  ; 
and,  finally,  that  no  proceeding  had  been  instituted  against  the 
trustee  under  the  insolvent  laws,  nor  had  any  claim  been  exhib- 
ited to  him  on  account  of  the  judgment  aforesaid.  Upon  this 
bill,  the  Chancellor,  Johnson,  ordered  an  injunction  as  prayed, 
and  the  answer  having  been  filed,  setting  forth  all  the  facts  as 
detailed  in  this  report,  the  cause  came  on  to  be  heard,  upon  bill 
and  answer,  on  the  motion  to  dissolve  the  injunction. 

Various  questions  were  raised  and  argued  at  the  hearing  upon 


DUVALL  VS.  SPEED.  235 

this  motion,  but  the  grounds  upon  which  the  Chancellor  de- 
cided the  cause,  will  appear  from  the  following  extracts  from 
his  opinion,  filed  on  the  27th  July,  1848,  viz.] 

THE  CHANCELLOR: 

When  the  application  for  the  injunction  was  made,  I  enter- 
tained very  serious  doubts  as  to  the  propriety  of  granting  it, 
but  not  seeing  that  any  material  injury  could  result  to  the  judg- 
ment creditor,  from  a  temporary  suspension  of  his  right  to  en- 
force it  by  execution,  and  being  willing  to  hear  the  views  of  counsel 
before  making  up  a  definite  judgment  upon  the  subject,  I  thought 
it  best  to  order  the  injunction,  that  a  more  careful  considera- 
tion might  be  given  the  case  when  the  motion  to  dissolve  should 
be  made. 

Upon  the  petition  of  these  complainants,  Duvall  and  Saussar, 
filed  in  the  case  of  Hodges  vs.  Sevier  and  wife,  the  proceedings 
in  which  case  are  made  parts  of  this,  I  had  occasion  to 
examine  the  question  of  the  extent  and  character  of  the  title 
which  a  purchaser  acquired  from  a  trustee  selling  under  a  de- 
cree of  this  court,  and  the  result  was,  that  "as  a  general  rule, 
the  title  of  the  parties  to  the  suit  and  nothing  more,  was  sold  ;" 
and,  that  though  a  purchaser  discovering  a  defect  in  his  title, 
at  the  proper  time,  might  be  relieved  from  his  purchase,  by  ask- 
ing for  a  rescision  of  the  sale,  he  could  not  be  permitted, 
whilst  holding  on  to  his  purchase,  to  insist  upon  having  his  ti- 
tle perfected  by  the  application  of  the  proceeds  of  sale  to  the 
extinguishment  of  the  claims  of  incumbrancers  not  parties  to 
the  suit. 

And  the  petition  in  that  case  was  dismissed  upon  the  ground, 
that  these  defendants,  the  judgment  creditors,  were  not  parties, 
and  their  lien,  consequently,  not  extinguished.  This  decision 
was  made,  too,  with  full  knowledge  and  due  reflection  upon 
the  fact,  that  Duvall,  the  trustee  of  the  insolvent,  was  a  party 
to  the  suit,  and  had  consented  to  the  decree  ;  and,  consequent- 
ly, it  follows,  that  his  presence  as  a  party  was  not  considered 
as  dispensing  with  the  presence  of  the  incumbrancers  them- 
selves. Or,  in  other  words,  that  the  trustee  was  not  to  be  regard- 


236  HIGH  COURT  OF  CHANCERY. 

ed  as  their  representative.  But,  for  this  conclusion,  the  prayer  of 
that  petition  must  have  been  granted. 

That  this  judgment  was  a  lien  at  the  time  of  the  execution  of 
the  mortgage  to  Hodges  is  incontestibly  settled  by  authority. 
Murphy  vs.  Cord,  12  Gill  fy  Johns.,  182;  Rankin  and  Schat- 
zell  vs.  Scott,  12  Wheat.,  177. 

And,  it  is  equally  indisputable,  that  if  the  judgment  creditor 
was  not  a  party  to  the  suit,  he  was  not  bound  to  seek  payment 
out  of  the  proceeds  of  sales  in  the  hands  of  the  trustee,  but 
might  prosecute  his  lien  against  the  property,  after  its  convey- 
ance to  the  purchaser.  Brooks  vs.  Brooke  et  al.,  12  Gill  fy 
Johns.,  318. 

These  propositions  arenot  understood  to  be  denied,  but  it  is  in- 
sisted, with  much  force,  that  notwithstanding  the  former  decision 
of  this  court  upon  the  petition  of  the  complainants  in  Hodges' 
case,  and  which,  as  has  been  explained,  could  only  have  been  pro- 
nounced upon  the  hypothesis,  that  these  judgment  creditors 
were  not  to  be  regarded  in  any  sense  as  parties  to,  and  bound 
by,  the  decree  in  that  suit ;  this  court  will  now  upon  this  bill 
declare,  that  they  were  parties,  and  bound  by  the  decree,  be- 
cause the  insolvent  trustee  was  a  party  and  consented  to  it. 

The  Court  of  Appeals,  in  the  case  of  Alexander  vs.  Ghiselin 
and  others,  decided  at  December  term  last,  that  upon  the  true 
construction  of  the  seventh  section  of  the  act  of  1805,  chapter 
110,  the  trustee  of  an  insolvent  debtor,  whose  property  had 
been  taken  in  execution  before  his  application  for  the  benefit  of 
the  insolvent  laws,  is,  nevertheless,  to  make  the  sales  applying 
the  proceeds  to  the  satisfaction  of  the  liens  ;  that,  upon  such 
application,  the  property  of  the  petitioning  debtor,  no  matter 
how  incumbered,  and  though  in  custodia  legis,  is  to  be  taken 
possession  of  and  sold  by  the  trustee,  in  order  that  there  may 
be  but  one  administration  of  the  estate.  And,  it  is  insisted, 
that  the  principle  of  this  decision  extends  to  the  present  case  ; 
and,  that  the  sale  made  under  the  decree  of  this  court,  upon 
the  bill  filed  by  Hodges,  the  trustee  of  the  insolvent  debtor  be- 
ing a  party  thereto  and  assenting  to  the  decree,  produces  the 
same  legal  consequences  as  if  the  sale  had  been  made  by  the 


DUVALL  VS.  SPEED.  237 

trustee  of  the  insolvent,  himself.  Or,  in  other  words,  because 
such  trustee  sells  free  of  incumbrances,  as  he  must  do,  in  or- 
der to  accomplish  the  purposes  of  the  insolvent  system,  that  the 
same  result  must  follow  when  a  sale  is  made  by  a  chancery 
trustee,  in  a  case  to  which  the  trustee  in  insolvency  is  a  party." 

But  can  this  be  so  ?  If  it  is,  then  the  fund  raised  by  the  sale 
in  Hodges'  case,  should  have  been  handed  over  to  the  insolv- 
ent trustee,  to  be  administered  in  insolvency  by  him,  and  its 
distribution  by  this  court  was  improper. 

The  insolvent  system,  as  contained  in  the  act  of  1805  and  its 
supplements,  is  a  system  to  be  administered  by  the  courts  of 
law,  and  with  which  this  court  has  nothing  to  do  ;  the  County 
Court  is  to  appoint  the  trustee — to  order  the  sale — to  fix  the 
commission — and  to  limit  the  time  for  the  creditors  to  bring  in 
and  declare  their  claims. 

Now,  if  the  trustee  appointed  by  this  court  can  by  any 
consent  of  the  trustee  in  insolvency,  be  so  far  substituted  for 
him,  as  that  a  sale  made  by  the  former,  shall  pass  to  the  purchaser 
an  unincumbered  title,  to  the  same  extent,  as  if  made  by  the 
latter  ;  and,  if  this*court,  by  reason  of  such  assent,  or  presence 
of  the  insolvent's  trustee,  as  a  party  to  the  cause,  can  adminis- 
ter the  insolvent  system,  it  should  do  so,  as  the  County  Court 
is  required  to  do  by  the  act  of  assembly. 

The  creditors  should  be  called  in  upon  notice,  as  provided 
for  by  the  12th  section  of  the  act ;  for  surely  nothing  could  be 
more  unjust,  than  that  their  rights  should  be  concluded,  with- 
out an  opportunity  of  asserting  them.  If  the  argument  of  the 
counsel  of  the  complainant  is  sound,  that  the  insolvent  trustee 
represents  all  the  creditors  of  the  insolvent,  then  it  follows,  not 
only  that  these  judgment  creditors  are  concluded,  but  all  the 
other  creditors  of  the  insolvent  are  in  the  same  situation,  though 
they  may  have  had  no  notice  whatever  of  the  existence  of  this 
chancery  suit,  and  of  course  no  opportunity  of  presenting  their 
claims.  Now,  suppose  it  should  turn  out,  that  there  is  some 
other  creditor  of  Sevier,  having  a  lien  older  than  Hodges'  mort- 
gage, who  never,  as  these  creditors  did,  came  in  and  asked  to 
be  paid  out  of  this  fund,  and  who  in  point  of  fact,  had  no  no- 


238  HIGH  COURT  OF  CHANCERY. 

tice  whatever  of  the  proceedings,  would  it  not  be  most  unjust 
to  turn  him  away  by  saying,  that  though  not  here  in  person, 
you  were  by  representative,  and  you  must  look  to  him.  And 
then,  when  he  applied  to  him  and  complained,  that  he  had  suf- 
fered the  fund  to  be  distributed,  without  regard  to  his  rights, 
the  answer  would  be,  the  fund  has  been  distributed  by  a  court 
of  competent  jurisdiction,  for  which  the  insolvent  trustee  could 
not  be  held  responsible. 

I  cannot  bring  myself  to  think,  that  the  case  of  Alexander 
vs.  Ghiselin  can  be  carried  to  an  extent  which  must  be  produc- 
tive of  such  injurious  consequences. 

The  bill  in  that  case  was  filed  for  the  purpose  of  having  the 
estate  administered  in  insolvency.  But  in  Hodges'  case,  it 
was  the  bill  of  a  mortgagee,  asking  for  the  enforcement  of  his 
specific  lien,  and  the  trustee  of  the  insolvent  was  brought  in, 
because  the  equity  of  redemption  had  devolved  upon  him  by 
operation  of  the  insolvent  laws. 

The  construction  contended  for  by  the  complainants'  counsel 
would  not  only  make  the  Court  of  Chancery  the  tribunal  for  the 
administration  of  the  insolvent  system,  but  as  several  bills  for 
the  enforcement  of  several  mortgages,  (if  the  insolvent  had  ex- 
ecuted more  than  one,)  might  be  filed  in  the  different  equity 
courts  of  the  state,  that  singleness  of  administration,  which  the 
system  aimed  at,  and  which  the  Court  of  Appeals  considered 
so  important  in  Alexander's  case,  would  be  entirely  defeated, 
and  instead  of  simplicity  and  uniformity,  the  utmost  confusion 
would  be  the  unavoidable  result. 

But  it  is  said,  the  judgment  of  the  defendants  has  been  im- 
properly revived,  because  Duvall,  the  insolvent  trustee,  was  not 
a  party  to  the  scire  facias,  and  that,  therefore,  this  court  ought 
not  to  dissolve  the  injunction. 

I  do  not  deem  it  necessary  to  express  an  opinion  upon  this 
point,  thinking  it  more  properly  belongs  to  the  courts  of  law. 
If  the  judgment  has  been  improperly  revived,  and  is  a  nullity, 
as  is  contended,  then  no  title  will  pass  to  the  party  who  may 
purchase  under  an  execution  issued  upon  it,  and  the  complain- 
ants will  not  be  injured.  But  surely  it  would  be  improper  in 


GOLDSBOROUGH   VS.   R1NGGOLD.  239 

this  court  to  prejudge  that  question,  it  being  a  question  of  law, 
or  to  interfere  in  any  way  with  the  rights  of  the  parties  under 
the  judgment,  unless  some  sufficient  equitable  ground  was  pre- 
sented, which  I  think  has  not  been  done. 
The  injunction,  therefore,  must  be  dissolved. 

[No  appeal  was  taken  from  this  order.] 


ROBERT  GOLDSBOROUGH  ET  AL.} 

vs.  t     JULY  TERM,  1848. 

MARTHA  R.  RINGGOLD  ET  AL.    J 

[TRUSTEES  IN  CHANCERY — RELIEF  IN  CASES   OF  MISTAKE.] 

IT  is  the  established  doctrine  in  Maryland,  that  a  sale  made  by  a  trustee  under 
a  decree  of  the  Court  of  Chancery,  is  a  transaction  between  the  court  and 
the  purchaser ;  and,  the  report  of  the  trustee  and  the  order  of  the  court,  rati- 
fying the  same,  must  be  regarded  as  the  evidence  of  the  contract  between 
the  parties. 

Before  a  party  can  be  relieved,  in  the  case  of  a  written  contract,  upon  the 
ground  of  mistake,  the  evidence  of  mistake  must  be  clear  and  satisfactory, 
and  if  any  reasonable  doubt  can  be  entertained  on  the  subject,  relief  will  be 
refused. 

The  mistake  sought  to  be  rectified,  was  in  regard  to  the  number  of  acres  sold 
under  the  decree.  The  only  evidence  was  found  in  a  survey  ordered  by  the 
court,  upon  the  exparte  application  of  the  petitioner,  which  differed  from  the 
survey,  according  to  which  the  land  was  sold.  It  was  HELD — that  this  evi- 
dence was  not  sufficient  to  overthrow  the  contract  on  the  ground  of  mistake. 

If  a  purchaser  would  be  refused  redress,  upon  the  ground  of  a  deficiency  in  the 
number  of  acres,  he  could  not  be  obliged,  under  the  same  circumstances,  to 
pay  for  an  excess. 

[The  facts  of  this  case  will  appear  from  the  Chancellor's 
opinion  :] 

THE  CHANCELLOR: 

This  case  is  brought  before  the  court  upon  the  petition  of 
Martha  R.  Ringgold,  filed  on  the  5th  of  May,  1844. 

It  appears  by  the  proceedings,  that,  on  the  2d  of  April,  1836, 
the  real  estate  of  William  Ringgold,  deceased,  was  sold  under  a 


240  HIGH  COURT  OF  CHANCERY. 

decree  of  this  court,  upon  a  creditor's  bill,  for  the  payment  of 
his  debts,  and  that  William  Emory  became  the  purchaser  there- 
of; which  sale  was  duly  reported  to  the  court  in  a  few  days 
thereafter,  and  was  finally  ratified  and  confirmed  on  the  20th  of 
the  succeeding  month  of  June.  The  land  was  sold  for  $24  52 
per  acre,  and,  according  to  the  report  of  the  trustee,  contained 
five  hundred  and  sixty-six  acres  ;  the  purchase  money  amount- 
ing to  $13,878  32,  and  the  terms  of  sale  were  fully  complied 
with  by  the  purchaser. 

It  also  appears,  that  prior  to  the  sale,  the  trustee  had  caused 
the  lands  to  be  surveyed  by  the  county  surveyor,  by  which  they 
were  ascertained  to  contain  the  number  of  acres  mentioned  in 
the  report,  and  that  the  plat  and  certificate  of  this  survey  were 
exhibited  to,  and  seen  by,  the  bidders  on  the  day  of  sale. 

The  proceedings  likewise  show  that  the  purchase  money  had 
been  paid  by  the  purchaser,  and  distributed  and  paid  over  to 
the  parties  entitled,  under  the  orders  of  this  court,  long  before 
the  present  petition  was  filed,  without  any  notice,  or  intimation 
to  the  purchaser,  that  an  error  was  supposed  to  exist  in  the 
survey,  which  was,  as  before  mentioned,  exhibited  by  the  trustee 
to  the  bidders  on  the  day  of  sale. 

As  early  as  March,  1841,  as  appears  by  the  report  of  the  Aud- 
itor, and  the  order  of  the  Chancellor,  the  residue  of  the  proceeds 
of  sale,  amounting  to  $9072  61,  that  sum  remaining  after  the 
payment  of  the  claims  of  creditors,  was  paid  over  to  the  guar- 
dians of  Martha  R.  Ringgold,  the  present  petitioner,  she  being 
as  the  devisee  of  the  deceased  William  Ringgold  entitled  to  such 
residue. 

It  is  further  shown,  by  an  order  of  the  Chancellor,  passed  on 
the  10th  of  May,  1837,  that  the  expense  incurred  by  the  trustee, 
in  having  the  lands  surveyed  prior  to  the  sale,  was  allowed  to 
him  out  of  the  proceeds. 

Under  these  circumstances  the  present  petition  is  filed,  in 
which,  upon  the  ground  of  a  supposed  mistake  made  in  the 
said  survey,  and  upon  the  allegation  that  the  lands  contained  a 
greater  number  of  acres  than  had  been  paid  for,  the  court  was 
asked  to  order  a  resurvey,  and  that  the  purchaser  might,  in  the 
event  of  an  excess,  be  compelled  to  pay  therefor. 


GOLDSBOROUGH  VS.  RINGGOLD.  241 

A  resurvey  was  ordered,  by  which  it  appears  that  there  is  an 
excess  of  42  acres  and  8  perches  ;  and  the  question  is,  whether 
the  purchaser  shall  be  made  to  pay  for  this  excess,  at  the  price 
per  acre  bid  by  him  at  the  trustee's  sale. 

The  application  of  the  petitioner  is  resisted  upon  several 
grounds,  and  counsel  have  been  heard  on  both  sides. 

It  is  the  established  doctrine  in  Maryland,  that  a  sale  made 
by  a  trustee,  under  a  decree  of  the  Court  of  Chancery,  is  a 
transaction  between  the  court  and  the  purchaser,  and  the  report 
of  the  trustee,  and  the  order  of  the  court  ratifying  the  sale,  must 
be  regarded  as  the  evidence  of  the  contract  between  the  parties. 
In  this  case,  the  trustee's  report  states  the  terms  of  sale,  and 
the  quantity  of  acres  contained  in  the  tract,  and  this  report, 
after  notice  in  the  usual  form  was  duly  ratified  and  confirmed. 

The  petitioner  alleges,  that  in  this  contract,  thus  solemnly 
ratified,  there  was  a  mistake,  injurious  to  her,  and  that  the 
tract,  instead  of  containing  the  number  of  acres  mentioned  in 
the  report  of  the  trustee,  contained  in  fact  upwards  of  six  hun- 
dred acres ;  and  her  counsel  insist,  that  the  mistake  must  be 
rectified,  and  the  purchaser  compelled  to  pay  for  the  excess. 

The  imputed  error  in  the  first  survey  is  denied,  or,  at  all 
events,  is  not  admitted,  and  of  course  must  be  proved,  the  onus 
being  on  the  party  alleging  the  mistake. 

The  proof  offered  is  the  plat  and  certificate  of  the  resurvey, 
made  under  the  order  of  this  court.  But  this  plat  and  certifi- 
cate differ  from  the  survey  which  the  trustee  caused  to  be  made, 
preparatory  to  the  sale,  and  which  the  court,  to  some  extent, 
adopted,  by  ordering  the  expense  of  it  to  be  defrayed  out  of  the 
purchase  money  ;  for  it  is  impossible  to  suppose  the  court  would 
have  charged  the  estate  with  the  cost  of  this  survey,  if  it  had 
not  been  regarded  as  made  by  proper  authority,  and  as  furnish- 
ing a  proper  basis  upon  which  to  settle  with  the  purchaser  of 
the  property.  That  this  survey  was  in  fact  the  basis  of  the 
contract  between  the  purchaser  and  the  court,  is  shown  beyond 
all  controversy. 

Now,  before  a  party  can  be  relieved  in  the  case  of  a  written 
contract,  upon  the  ground  of  mistake,  the  evidence  of  the  mis- 
VOL  i. — 21 


242  HIGH   COURT  OF  CHANCERY. 

take  must  be  clear  and  satisfactory.  1  Story's  Equity,  169,  sec. 
157.  If  there  be  any  ambiguity  in  the  proofs,  or  a  reasonable 
doubt  can  be  entertained  upon  the  subject,  the  cases  all  show, 
relief  will  be  refused. 

It  was,  upon  one  occasion,  said  by  Lord  Thurlow,  that  there 
was  no  instance  in  which  relief  was  granted  upon  the  ground 
of  mistake  ;  and  although  this  dictum  will  be  found  unsupport- 
ed by  the  adjudged  cases,  they  all  concur  in  demanding  clear 
and  convincing  evidence  of  the  mistake,  before  relief  will  be 
granted.  Gillespie  vs.  Morn,  2  Johns.  Ch.  Rep.,  507. 

In  this  case,  the  only  evidence  of  the  mistake  is  to  be  found 
in  a  survey  which  differs  from  the  surveys  according  to  which 
the  land  was  sold.  The  one  of  these  surveys  was  made  by  the 
county  surveyor,  acting  under  the  authority  of  the  trustee,  and 
adopted  by  the  court  in  the  mode  which  has  been  mentioned. 
The  other  was  made  by  a  surveyor  specially  appointed  by  the 
Chancellor  for  the  purpose,  upon  the  ex  parte  application  of  the 
petitioner,  and  I  am  at  a  loss  to  see  why  more  confidence  should 
be  reposed  in  the  one  than  in  the  other.  I  purposely  abstain 
from  remarking  upon  the  conduct  of  the  officer  by  whom  the 
last  survey  was  made,  which  has  been  the  subject  of  a  good 
deal  of  criticism  on  the  one  side,  and  of  justification  on  the 
other,  and  deem  it  quite  sufficient  to  say,  that,  under  all  the 
circumstances  of  the  case,  I  perceive  no  reason  why  the  last 
survey  should  have  that  preponderating  weight  as  evidence, 
which  the  rule  applicable  to  the  case,  clearly  requires  of  a  party 
who  seeks  to  overthrow  a  written  contract,  upon  the  ground  of 
mistake. 

There  is,  moreover,  another  principle  which,  in  my  judgment, 
is  fatal  to  the  present  application.  The  purchase  money  in  this 
case  has  been  long  since  paid  and  distributed,  and  if  the  pur- 
chaser should  now  be  evicted  by  a  superior  title,  he  would  be 
without  remedy,  and  would  have  to  submit  to  the  loss.  Glenn 
vs.  Clapp,  11  Gill  #  Johns.,  10. 

This  being  so,  it  would  be  strange,  if  the  parties  who  have 
received  the  money,  or  indeed  any  other  parties,  years  after  the 
payment  and  distribution  of  the  money,  could  be  permitted  to 


GOLDSBOROUGH  VS.  R1NGGOLD.  243 

call  upon  the  purchaser  to  pay  a  larger  sum,  upon  the  ground 
that  he  had  got  more  land  than  was  supposed  at  the  time  of  the 
purchase.  Among  parties  equally  innocent  there  should  be  a 
reciprocity  of  rights  and  remedies,  and  if,  therefore,  from  causes 
for  which  he  is  in  no  wise  to  blame,  the  purchaser  would  be 
compelled  to  bear  the  whole  loss,  if  the  entire  property  should 
be  taken  from  him,  or  a  partial  loss,  if  deprived  of  a  part  of  it, 
it  is  difficult  to  discover  the  principal  of  equity  upon  which  he 
can  be  held  responsible,  upon  the  ground  assumed  in  this  pe- 
tition. 

If  the  purchaser,  by  reason  of  the  successful  assertion  of  a 
superior  outstanding  title,  should  lose  a  part  of  the  land  paid 
for,  or  if,  as  the  case  stood  at  the  time  this  petition  was  filed, 
he  would  be  refused  redress,  upon  the  ground  of  a  deficiency 
in  the  numbers  of  acres,  it  would  seem  to  follow  inevitably  that 
lie  should  not  be  obliged  under  the  same  circumstances  to  pay 
for  an  excess. 

This  principle  of  mutuality,  I  think,  would  be  applicable  to 
the  case,  if  the  parties  had  possessed  the.  same  information  at 
the  period  of  the  sale,  and  surely  the  purchaser  here  has  a  su- 
peradded  right  to  ask  that  it  be  enforced  for  his  protection, 
when  it  is  recollected,  that  the  agent  of  this  court,  through 
whom  the  sale  was  made,  was  informed  of  the  supposed  ex- 
cess, on  or  about  the  day  of  sale,  and  did  not  impart  the  infor- 
mation to  the  bidders,  or  make  the  fact  known  to  the  purchaser 
in  season,  to  enable  him  to  avail  himself  of  it  at  the  proper 
time ;  if,  indeed,  it  would  at  any  time  have  furnished  him  a 
ground  of  relief. 

This  circumstance  gives  stringent  force  to  the  principle,  in 
favor  of  this  purchaser,  and  would,  in  my  view  of  it,  be  con- 
clusive against  the  present  application. 

Without,  therefore,  expressing  an  opinion  upon  the  other 
questions  discussed  at  the  bar,  my  judgment  is,  that  the  peti- 
tion must  be  dismissed,  and  shall  pass  an  order  accordingly. 


244  HIGH  COURT  OF  CHANCERY. 


JOSEPH  SHEPHERD         ^ 

vs.  (.     JULY  TERM,  1848. 

SAMUEL  SHEPHERD  ET  ALj 

[STATUTE  OF  FRAUDS — PART  PERFORMANCE — SPECIFIC  PERFORMANCE.] 

To  take  a  parol  agreement  out  of  the  statute  of  frauds,  on  the  ground  of  part 
performance,  the  acts  done  in  part  performance  must  not  only  be  referrible 
exclusively  to  the  contract  set  up  in  the  bill,  but  the  contract  itself  must  be 
established  by  evidence—clear,  definite  and  unequivocal  in  its  terms. 

The  party  must  show  acts  unequivocally  referring  to,  and  resulting  from,  the 
agreement  set  up,  such  as  the  party  would  not  have  done,  unless  on  account  of 
that  very  agreement,  and  with  a  view  to  its  performance  ;  and,  the  agree- 
ment set  up  must  appear  to  be  the  same  with  the  one  partly  performed. 

A  court  of  chancery  will  not  decree  the  specific  performance  of  a  mere  volun- 
tary agreement. 

The  Chancellor  refused  to  decree  the  execution  of  the  contract  set  up  in  this 
case,  because,  there  was  a  want  of  the  essential  elements  of  unequivocal  cer- 
tainty in  the  agreement,  and  in  the  acts  relied  upon,  as  part  performance. 

[The  complainant  filed  his  bill  in  this  court,  on  the  9th  of 
October,    1847,  stating  that  his   mother  was  in  her   lifetime 
seized  and  possessed  of  a  tract  of  land  in  Anne  Arundel  coun- 
ty, containing  about  sixty-nine  acres,  upon  which  he  (complain- 
ant) has  resided  for  the  last  four  years  ;.and  that  his  father,  by 
his  will,  had  devised  the  same  to  him  in  fee,  under  the  erroneous 
impression  that  he  was  the  fee-simple  owner  thereof,  and  had 
a  right  to  devise  it  away.     The  complainant  stated  that  he  had 
asserted  no  claim   to  the  land  under  this  devise,  but  that  his 
mother  being  anxious  that  he  should  hold  and  enjoy  it  in  fee- 
simple,  agreed  to  convey   it  to  him  if  he  would  relinquish  his 
interest  in  his  father's  personal  estate,  in  her  hands  as  his  guar- 
dian ;  to  which  proposition  he  assented,  and,  for  the  purpose 
of  carrying  it  out,  executed  to  her  a  receipt  for  said  personal 
property,  although  he  never  received  any  portion  thereof;  the 
receipt  being  intended  merely  to  operate  as  a  payment  of  so 
much  money  upon  the  land.     The   complainant  further  stated, 
that  immediately  thereafter  he  took  possession  of  the  land  in 
pursuance  of  the  agreement,  and  had  held  it  ever  since  ;  that 
his  mother,  until  her  death,  had  treated  and  spoken  of  hirn  as 


SHEPHERD  VS.  SHEPHERD.  245 

the  owner  thereof,  and  had  promised  to  execute  a  conveyance 
to  him,  whenever  requested  to  do  so  ;  and  that  she  departed  this 
life  a  few  weeks  before  the  bill  was  filed,  without  having  execu- 
ted any  deed  to  him,  and  leaving  himself,  and  several  brothers 
and  sisters,  and  the  infant  children  of  a  deceased  sister,  her 
heirs  at  law,  to  whom  the  legal  title  to  said  tract  of  land  de- 
scended. 

The  bill  concluded  with  a  prayer  for  the  specific  performance 
of  the  contract,  and  a  conveyance  to  the  complainant  by  the  de- 
fendants, of  the  legal  title  to  the  land,  and  for  general  relief. 
The  facts  stated  in  the  bill  were  admitted  to  be  true,  and  the 
prayer  was  assented  to,  by  all  except  the  infant  defendants  ; 
who  having,  by  their  guardian,  declined  admitting  the  same,  a 
commission  was  issued,  and  testimony  was  taken  thereunder. 
The  value  of  the  land   was   variously   estimated  by  the  wit- 
nesses, at  from  $2500  to  $3000,  and  the  receipt  was  given  for 
$571  62. 

The  counsel  for  the  infants  excepted  to  the  testimony,  as  at- 
tempting to  vary,  explain,  or  contradict  the  receipt,  which  was 
written  evidence  ;  and  as  attempting  to  sustain  a  parol  contract 
relative  to  the  transfer  of  lands,  contrary  to  the  statute  of  frauds, 
upon  which  they  said  they  relied. 

The  case  having  been  submitted  on  notes,  the  chancellor  at 
this  term  delivered  the  following  opinion:] 

i 
THE  CHANCELLOR: 

This  is  a  bill  for  the  specific  performance  of  a  parol  contract 
in  relation  to  lands,  and  of  course  the  plaintiff  can  only  suc- 
ceed upon  the  ground  of  a  part  execution  of  the  agreement ; 
and  the  acts  done  in  part  performance,  must  not  only  be  refer- 
rible  exclusively  to  the  contract  set  up  in  the  bill,  but  the  con- 
tract must  itself  be  established  by  evidence — clear,  definite  and 
unequivocal  in  its  terms.  Such  is  the  current  of  all  the  author- 
ities upon  this  branch  of  the  jurisdiction  of  courts  of  equity. 
2  Story  Eq.,  section  762.  Wingate  vs.  Dail,  2  H.  and  J.,  76. 
It  was  said  by  Chancellor  Kent,  in  Phillips  vs.  Thompson, 
1  Johns.  Ch.  Rep.,  131,  that  if  a  party  sets  up  part  perform- 
21* 


246  HIGH  COURT  OF  CHANCERY. 

ance,  to  take  a  parol  agreement  out  of  the  statute  of  frauds,  he 
must  show  acts  unequivocally  referring  to,  and  resulting  from 
that  agreement,  such  as  the  party  would  not  have  done,  unless 
on  account  of  that  very  agreement,  and  with  a  direct  view  to 
its  performance,  and  the  agreement  set  up,  must  appear  to  be 
the  same  with  the  one  partly  performed. 

These  principles  are  declared  to  be  recognized  by  a  series  of 
decisions,  and  in  the  subsequent  case  of  Parkhurst  and  Van 
Cortland,  reported  in  the  same  book,  273,  be  reaffirms  the  doc- 
trine of  the  previous  case,  and  maintains  it  to  be  undoubtedly 
sound. 

In  the  case  under  consideration,  in  my  opinion^  those  essen- 
tial elements  of  unequivocal  certainty  in  the  agreement,  and  in 
the  acts  relied  upon  as  part  performance,  are  not  to  be  found. 
It  certainly  does  not  appear  that  the  possession  of  the  complain- 
ant, Joseph  Shepherd,  is  referrible  exclusively  to  an  agreement 
between  him  and  his  mother,  Mary  Shepherd,  for  the  convey- 
ance of  the  land  to  him.  The  consideration  to  be  paid,  or 
which  is  alleged  to  have  been  paid  by  him,  was  altogether  in- 
adequate, and  hence,  the  effort  to  eke  out  that  consideration  by 
the  attempt  to  show  that  she  was  likewise  influenced  by  defer- 
ence to  the  wishes  of  her  deceased  husband.  In  this  view, 
and  so  far  as  a  desire  to  comply  with  the  supposed  wishes  of 
her  husband  are  concerned,  the  agreement  must  be  regarded 
as  voluntary,  and  it  is  settled,  that  a  court  of  chancery  will  not 
decree  the  specific  performance  of  a  merely  voluntary  agree- 
ment. Black  vs.  Cord,  2  Har.  and  Gill,  100. 

The  agreement  in  this  case,  .if  it  can  be  supported  at  all, 
must  be  supported  as  an  agreement  to  sell  and  convey,  and 
such  is  the  nature  of  the  agreement  as  stated  in  the  bill :  which 
alleges  that  his  mother  being  anxious  that  he  should  hold  and 
enjoy  the  land  in  fee-simple,  proposed  to  him,  (the  complainant,) 
that  if  he  would  relinquish  his  interest  in  his  father's  personal 
estate,  she  would  sell  and  convey  to  him  in  fee  simple,  the  said 
land.  The  question,  therefore,  is,  has  the  complainant  made 
out  in  the  proof  an  agreement  to  sell  and  convey,  and  a  part 
performance  of  that  agreement,  and  above  all,  has  he  estab- 


SHEPHERD  VS.  SHEPHERD.  247 

lished  such  agreement  and  acts  of  part  performance,  by  that 
clear  and  unambiguous  evidence  which  is  required  by  the  rule  ? 
I  think  not.  It  appears  to  me,  that  the  complainant's  case  falls 
below  that  strict  standard  of  proof,  which  the  most  eminent 
judges  have  declared  to  be  indispensable,  and  a  strictness,  too, 
which  no  disposition  is  manifested  to  relax,  the  determination 
on  the  contrary  being  often  expressed,  not  to  carry  the  excep- 
tions of  cases  from  the  statute,  further  than  required  by  former 
decisions.  Story1  s  Eq.,  sec.  766. 

Lord  Redesdale,  said,  in  the  case  of  Lindsay  vs.  Lynch,  2 
Sch.  and  Lef.,  4,  that  it  was  absolutely  necessary  for  courts  of 
equity  to  make  a  stand,  and  not  to  carry  the  decisions  further, 
a  resolution  which  met  the  approbation  of  Chancellor  Kent  in 
Parkhurst  vs.  Van  Cortland,  already  referred  to,  and  which,  as 
it  seems  to  me,  must  commend  itself  to  all  who  are  not  dis- 
posed to  see  the  statute  frittered  away,  until  no  vestige  of  it 
shall  remain. 

In  this  case  we  look  in  vain  for  that  unequivocal  evidence 
of  a  contract,  to  sell  and  convey,  as  alleged  in  the  bill.  It  is 
obvious  from  the  evidence  on  both  sides,  that  Mrs.  Shepherd, 
the  mother,  never  did  consider  her  power  and  dominion  over 
the  land,  as  transferred  to  the  complainant.  She  spoke  fre- 
quently of  her  intention  to  dispose  of  it  by  her  will,  which,  up- 
on the  supposition  that  she  had  contracted  to  sell  and  convey, 
and  had  received  the  consideration  money,  she  of  course  had 
no  power  to  do.  It  is  also  clear  from  other  portions  of  the 
proof  that  the  complainant  regarded  his  mother  as  possessing 
the  power  of  disposition  over  the  property  ;  an  impression 
which  he  could  not  have  entertained,  if  he  considered  himself 
in  possession  under  a  valid  contract  of  purchase. 

That  there  was  a  family  understanding,  that  the  complain- 
ant was  to  have  this  land  at  the  death  of  his  mother,  is  quite 
apparent,  not  only  from  the  evidence  of  members  of  the  family, 
but  of  others ;  but  I  cannot  see  in  the  record,  that  species  of 
proof  upon  which  alone  this  court  is  authorized  to  decree  a  spe- 
cific execution  of  a  parol  agreement  in  relation  to  land,  and, 
therefore,  I  must  dismiss  the  bill,  though  there  is  enough  in  the 


248  HIGH  COURT  OF  CHANCERY, 

case  to  induce  me  to  do  so  without  subjecting  the  complainant 
to  costs. 

Some  of  the  defendants,  it  is  true,  have  admitted  the  agree- 
ment, and  consented  to  a  decree  ;  but  as  the  complainant  has 
failed  in  establishing  his  case  against  the  infant  defendants  in 
a  point  vital  to  his  right  to  the  interposition  of  this  court,  no 
course  is  left  but  to  dismiss  his  bill. 

Assuming  that  the  complainant  gave  the  receipt  to  his 
mother,  in  consideration  of  her  agreeing  to  convey  him  this 
land,  an  assumption,  however,  of  which  there  is  no  evidence, 
his  possession,  and  enjoyment  of  the  rents  and  profits  for  four 
years,  according  to  the  proof,  has  most  abundantly  reimbursed 
him,  as  well  as  for  the  improvements  which  he  has  put  upon 
the  property. 

[The  decree  in  this  case  was  reversed  on  appeal.] 


WILLIAM  HARNESS  ET  AL.      "] 

vs 

THE  CHESAPEAKE  AND  OHIO     I       J0LY  TERM'  ^ 
CANAL  COMPANY  ET  AL. 


[THE    RIGHT   OF   EMINENT  DOMAIN — INJUNCTION — INTEREST — JUDGMENT — 

MERGER.] 

THE  principle,  that  the  right  of  eminent  domain  authorizes  the  government  to 
take  and  appropriate  private  property  for  public  uses,  without  making  com- 
pensation to  the  owner,  unless  there  is  some  provision  in  the  constitution 
restrictive  of  the  power,  cannot  be  maintained  in  Maryland. 

Such  an  appropriation  by  law,  without  compensation,  would  be  in  conflict 
with  the  sixth  and,  twenty-first  articles  of  the  bill  of  rights,  the  latter  of 
which  declares— "that  no  freeman  ought  to  be  taken,  or  imprisoned,  or  dis- 
seized of  his  freehold,  liberties  or  privileges,  or  outlawed,  or  exiled,  or  in 
any  manner  destroyed,  or  deprived  of  his  life,  liberty  or  property,  but  by  the 
judgment  of  his  peers  or  the  laws  of  the  land." 

To  say,  that  the  legislature  has  such  power,  is  to  confer  upon  it  judicial  pow- 
ers, and  to  confound  those  departments  of  government,  which  the  declaration 
of  rights  says,  shall  be  kept  forever,  separate  and  distinct. 

The  legislature  of  this  state,  has  in  no  instance,  in  the  exercise  of  the  right  of 


HARNESS  VS.  CHESAPEAKE  AND  OHIO  CANAL  CO.        249 

eminent  domain,  omitted  to  provide  compensation  to  the  owner  of  the  prop- 
erty taken  for  public  uses  ;  and  such  provision  was  made  by  the  15th  section 
of  the  act  of  1824,  ch.  79,  passed  to  confirm  an  act  of  the  legislature  of  Vir- 
ginia, incorporating  the  Chesapeake  and  Ohio  Canal  Company.  The  15th 
and  19th  sections  of  the  charter  of  this  company  construed, 

The  taking  of  acceptances  fora  pre-existing  debt  by  a  creditor,  cannot  have  the 
effect  of  extinguishing  the  debt. 

If  the  inquisition  of  the  jury,  when  returned  to  and  affirmed  by  the  court,  under 
the  act  of  1824,  constitutes  a  debt  at  all,  it  is  a  debt  of  record,  and  of  equal 
grade  with  a  judgment,  and,  therefore,  not  merged  by  it. 

When  the  company  refuses  or  neglects  to  pay  for  the  land  condemned  for  their 
use,  tbe  owner  has  a  right  to  call  upon  this  court  to  protect,  by  injunction, 
his  property  from  injury,  until  the  money  is  paid. 

The  complainants  were  held  to  be  entitled  to  interest  on  their  claim,  from  the 
day  of  the  affirmation  of  the  inquisition  of  the  jury  by  the  court. 


[On  the  4th  June,  1838,  a  previous  inquisition  having  been 
set  aside  by  Alleghany  County  Court,  a  new  jury  met  and  pro- 
ceeded to  condemn  the  lands  of  the  complainants,  for  the  use 
of  the  Chesapeake  and  Ohio  Canal  Company,  one  of  the  defend- 
ants in  this  cause.  By  their  inquisition,  which  was  affirmed  by 
the  court  of  said  county,  on  the  8th  of  October  following,  the 
sum  of  $13,256  was  awarded  to  the  complainants,  as  damages 
for  the  lands  so  condemned.  Shortly  after  the  ratification  of 
this  inquisition,  the  company  commenced  operations  upon  the 
condemned  lands,  making  some  excavations  upon  the  upper 
and  lower  ends  of  the  line,  and  continued  working  upon  them, 
at  intervals,  until  the  years  1840  and  1841,  when  their  opera- 
tions were  temporarily  suspended.  On  the  1st  April  1840,  the 
money  not  being  paid,  the  company  accepted  the  drafts  of 
William  Harness,  acting  for  himself,  and  under  a  letter  of  attor- 
ney from  the  other  parties,  payable  to  his  order,  for  the  amount 
of  the  inquisition,  with  interest  from  the  day  of  its  ratification. 
These  drafts  matured  on  the  1st  December,  1840,  and  having 
been  dishonored,  suit  was  brought  upon  them  by  the  payee  in 
Alleghany  County  Court,  and  judgment  was  recovered,  in  his 
name,  at  October  term,  1842.  On  the  2d  June,  1843,  a  fieri 
facias  was  issued  upon  this  judgment,  and  levied  by  the  sheriff 
upon  the  property  condemned,  and  upon  another  piece  of  land, 
supposed  to  belong  to  the  company,  but  which  was,  in  fact, 


250  HIGH  COURT  OF  CHANCERY. 

held  by  trustees  for  its  benefit,  and  was  by  them  afterwards 
sold,  and  the  proceeds  of  sale  applied  to  the  payment  of  other 
debts  than  those  of  the  complainants. 

No  sale  was  made  by  the  sheriff  under  his  levy,  and  things  re- 
mained in  this  state  until  December,  1845.  when  the  bill  was 
filed  in  this  cause  by  the  complainants.  At  the  time  these 
drafts  were  accepted  by  the  canal  company,  a  receipt  was  sign- 
ed by  William  Harness,  in  which  he  said,  "I  accept  the  same," 
(the  accepted  drafts,)  "as  full  payment  of  the  lands  of  William, 
Joseph  and  Hannah  Harness,"  (the  complainants,)  "in  Alleghany 
county,  Maryland,  condemned  by  inquisition  at  the  instance  of 
said  canal  company,  and  affirmed  by  the  court  of  that  county,  at 
October  term,  1838."  The  bill  alleged  the  insolvency  of  the 
company  ;  that  the  condemned  lands  were  the  complainants' 
only  resource  for  the  payment  of  their  claim  ;  and,  that  these 
would  be  rendered  worthless  by  the  passage  of  the  canal  through 
them,  which,  however,  would  be  done,  unless  they  were  aided 
by  an  injunction.  The  late  Chancellor  granted  the  injunction, 
which,  on  the  coming  in  of  the  answers,  was  continued  till  the 
hearing.] 

THE  CHANCELLOR  : 

Though  respectable  authorities  may  be  found  for  the  princi- 
ple, that  the  right  of  eminent  domain  inherent  in  the  sovereign 
power,  authorizes  the  government  to  take  and  appropriate  pri- 
vate property  for  public  uses,  without  making  compensation  to 
the  owner,  unless  there  is  some  provision  in  the  constitution  re- 
strictive of  the  power,  I  am  fully  persuaded,  that  no  such  prin- 
ciple can  be  maintained  in  this  state.  The  decisions  of  the 
court  of  last  resort  here,  as  I  understand  them,  clearly  forbid 
the  exercise  of  any  such  power. 

In  commenting  upon  the  act  of  1825,  chapter  190,  which 
proposed  to  abolish  one  corporation  and  to  transfer  its  fran- 
chises and  property  to  another,  without  the  consent  of  the  form- 
er, the  Court  of  Appeals  declared,  that  independently  of  the 
constitution  of  the  United  States,  prohibiting  the  states  from 
passing  laws  impairing  the  obligation  of  contracts,  there 


HARNESS  VS.  CHESAPEAKE  AND  OHIO  CANAL  CO.        251 

was  a  principle  of  right  and  justice  inherent  in  the  nature  and 
spirit  of  the  social  compact,  which  restrained  and  set  bounds 
to  the  auihority  of  the  legislature,  and  beyond  which  it  could 
not  be  allowed  to  pass.  That  principle  which  protects  the 
life,  liberty  and  property  of  the  citizen  from  violation  in 
the  unjust  exercise  of  legislative  power.  Regents  of  the  Uni- 
versity of  Maryland  vs.  Williams,  9  G.  #  J.,  409. 

Chancellor  Kent,  in  speaking  of  the  right  of  eminent  domain, 
or  that  inherent  sovereign  power  which  gives  to  the  legislature 
the  control  of  private  property  for  public  uses,  remarks,  that 
the  constitution  of  the  United  States,  and  of  most  of  the  states 
of  the  Union  have  imposed  a  valuable  check  upon  the  exercise 
of  the  power,  by  declaring,  that  private  property  shall  not  be 
taken  for  public  use,  without  just  compensation  ;  a  principle, 
as  he  says,  founded  in  natural  justice  and  recognised  by  the 
universal  law.  And,  he  further  observes,  "that  though  it  be 
not  a  constitutional  principle,  yet  it  exists  with  stringent  force, 
independent  of  any  positive  provision."  2  Kent  Com.,  339, 
340,  and  note. 

The  only  case  to  which  I  have  been  referred,  in  which  it  was 
held,  that  private  property  might  be  taken  for  public  use, 
against  the  consent  of  the  owner,  and  without  making  compen- 
sation, is  that  of  the  State  vs.  Dawson,  3  HiWs  Rep.,  100. 
This  decision  was  placed  upon  the  ground,  that  the  5th  article 
of  the  constitution  of  the  United  States,  which  prohibits  the  tak- 
ing of  private  property  for  public  use,  without  just  compensa- 
tion, is  applicable,  exclusively,  and  restrictive  only  of  the  pow- 
ers of  the  general  government  and  its  functionaries;  and,  that 
as  there  is  no  restraining  provision  in  the  constitution  of  South 
Carolina,  the  legislative  authority  could  not  be  controlled. 

The  weight  of  this  authority,  however,  is  much  weakened 
by  the  dissatisfaction  with  it,  expressed  by  several  of  the  judges, 
and  by  the  opinion  of  Mr.  Justice  Richardson,  in  support  of  the 
obligation  of  making  compensation. 

But,  if  it  should  be  conceded,  that  the  legislature  of  Mary- 
land might  exercise  the  power  in  question,  if  there  was  nothing 
in  the  constitution  to  forbid  it ;  and,  if  the  argument  pressed 


252  HIGH  COURT  OF  CHANCERY. 

by  one  of  the  counsel  for  the  defendants  is  sound,  that  the 
law-making  power  of  the  state  governments  is  unrestrained, 
except  by  the  constitution  ;  still,  as  it  seems  to  me,  the  appro- 
priation, by  law,  of  private  property  to  the  public  use,  without 
compensating  the  owner,  could  not  be  tolerated. 

The  sixth  article  of  the  bill  of  rights  separates  the  legislative, 
executive  and  judicial  departments  of  the  government,  and 
makes  the  separation  permanent.  And,  the  21st  article  of  the 
same  instrument  says,  "that  no  freeman  ought  to  be  taken  or 
imprisoned,  or  disseized  of  his  freehold,  liberties  or  privileges, 
or  outlawed,  or  exiled,  or  in  any  manner  destroyed,  or  deprived 
of  his  life,  liberty  or  property,  but  by  the  judgment  of  his  peers, 
or  the  law  of  the  land." 

These  provisions  were,  undeniably,  intended  as  restraints 
upon  the  legislative  power,  by  means  of  the  courts  of  justice, 
charged  with  the  administration  of  the  law.  The  words,  "by 
the  law  of  the  land,"  which  are  copied  from  Magna  Charta, 
are  understood  to  mean,  due  process  of  law,  that  is,  a  regular 
trial  according  to  the  course  and  usage  of  the  common  law ; 
and  the  words,  "the  judgment  of  his  peers,"  mean,  a  trial  by 
jury  according  to  the  course  of  the  same  law.  2  Kent's  Com.,  13  ; 
9  G.  &  /.,  412. 

The  legislative  department  of  the  government  makes  the  law,  or 
prescribes  general  rules  for  the  government  of  the  community ; 
but  it  cannot  deprive  an  individual  of  his  property — because, 
to  do  so,  is  to  pronounce  a  sentence,  and  not  to  enact  a  law  ; 
and,  in  the  language  of  the  Court  of  Appeals,  to  pronounce 
sentence  without  a  hearing,  or  giving  to  the  party  whose  prop- 
erty is  taken,  an  opportunity  of  defending  his  rights  against 
the  attempted  invasion. 

This  view  of  the  subject  does  not  interfere  with  the  due  ex- 
ercise of  the  right  of  eminent  domain,  which  gives  to  the  legis- 
lature the  power  to  take  private  property  for  the  public  use. 
When  this  power  is  exerted,  the  government  is  bound  to  pro- 
vide some  tribunal  for  the  assessment  of  the  compensation,  be- 
fore which  the  parties  may  meet  and  discuss  their  rights,  face 
to  face.  But,  to  say  that  the  legislature  may,  by  its  own  act, 


HARNESS  VS.  CHESAPEAKE  AND  OHIO  CANAL  CO.        253 

and  without  the  intervention  of  any  judicial  tribunal,  take  an 
individual's  property  from  him,  when  the  constitution  de- 
clares, he  shall  only  be  deprived  of  it  by  the  judgment  of  his 
peers,  or  by  the  law  of  the  land,  is  to  confer  upon  the  legisla- 
ture judicial  powers,  and  to  confound  those  departments  of  the 
government  which  the  declaration  of  rights  says,  shall  be  kept 
forever  separate  and  distinct. 

It  is  believed,  however,  that  the  legislature  of  this  state  has, 
in  no  instance,  in  the  exercise  of  the  right  of  eminent  domain, 
omitted  to  provide  compensation  to  the  owner  of  the  property, 
taken  for  the  public  use. 

By  the  15th  section  of  the  act  of  1824,  chapter  79,  passed  to 
confirm  an  act  of  the  legislature  of  Virginia,  incorporating  the 
Chesapeake  and  Ohio  Canal  Company,  provision  is  made  for 
condemning  the  lands  of  individuals  for  the  purpose  of  making 
the  canal,  in  case  the  owners  and  company  cannot  agree,  or  in 
case  the  owners  are  incompetent,  or  absent  from  the  state.  The 
law  in  either  of  these  contingencies  provides  a  tribunal  for  the 
assessment  of  the  compensation  or  indemnity  to  the  owner,  and 
directs  that  the  valuation  placed  upon  the  land  by  this  tribunal 
shall  be  paid  by  the  canal  company,  to  the  owner  or  his  legal 
representatives  ;  and,  that  on  payment  thereof,  the  company 
shall  be  seized  of  the  land  condemned,  either  absolutely,  or  of 
such  less  quantity  and  duration  of  interest  or  estate,  as  may  have 
been  valued.  It  is  very  certain,  therefore,  that  in  this  case, 
and  with  regard  to  the  powers  of  this  company,  the  legislature 
did  not  intend,  through  its  instrumentality,  to  appropriate  pri- 
vate property  to  the  public  use,  without  compensating  the  own- 
er. The  office  of  the  jury,  summoned  under  the  provisions  of 
this  section  of  the  act,  is  to  determine  the  value  of  the  land  con- 
demned ;  and  it  declares,  that  their  valuation  shall  be  conclu- 
sive on  all  persons,  and  shall  be  paid  by  the  company  to  the 
owner  of  the  land  or  his  legal  representatives.  And  the  lan- 
guage of  the  law  is  explicit,  that  the  title  of  the  company, 
whether  absolute  or  qualified,  shall  vest  only  on  payment  of  the 
money. 

However  true  it  may  be,  as  has  been  argued,  that  the  canal 
VOL.  i — 22 


254  HIGH    COURT  OF  CHANCERY. 

company,  might,  even  after  the  inquisition  of  the  jury  had  been 
ratified,  have  abandoned  the  route  over  the  lands  of  the  com- 
plainants, and  thus  freed  themselves  from  any  obligation  to  pay 
the  valuation,  still,  as  the  company  have  not  exercised  this 
right,  but  have,  on  the  contrary,  taken  possession  of  the  land, 
excavated  a  part  of  it,  and  propose  to  cut  their  canal  through 
the  entire  line,  their  obligation  to  pay  the  sum  awarded  by  the 
jury,  would  seem  to  be  incontestible.  If  the  government  had 
omitted  in  the  case  of  this  company,  to  provide  for  compen- 
sating the  owners  of  property  taken  for  the  use  of  the  canal, 
its  officers  and  agents,  upon  application,  would  have  been  re- 
strained by  injunction.  Gardiner  vs.  Village  of  Newbury,  2 
Johns.  Ch.  Rep.,  162. 

And  having  made  provision  for  such  compensation,  and  pre- 
scribing the  mode,  in  which  the  amount  to  be  paid  shall  be  ascer- 
tained, and  the  canal  company,  having,  in  pursuance  of  the  power 
conferred  upon  them,  condemned  and  taken  possession  of  the  land 
of  the  complainants,  nothing  can  be  clearer,  than  the  obligation 
to  pay  the  money.  The  argument,  that  it  would  be  unreason- 
able to  require  payment  before  the  title  passes,  and,  therefore, 
that  such  pre-payment  could  not  have  been  intended  by  the 
legislature,  does  not  seem  to  me  applicable,  because  the  pay- 
ment and  the  passing  of  the  title  are  simultaneous.  The  law 
says,  "on  payment  thereof,"  (that  is  on  payment  of  the  sum 
awarded  by  the  jury,)  the  company  shall  be  seized.  Some 
difference  of  opinion  has  been  expressed  by  the  courts,  with 
respect  to  the  period  at  which  the  compensation  shall  be  paid, 
but  the  weight  of  authority,  and  as  Chancellor  Kent  says,  the 
better  opinion  is,  that  the  compensation,  or  offer  of  it,  must 
precede,  or  be  concurrent  with  the  seizure  and  entry  upon 
private  property  under  the  authority  of  the  state.  2  Kent's 
Cow.,  340,  note. 

It  is  true,  the  1 9th  section  of  the  charter  of  this  company 
authorizes  it  to  enter  upon  the  lands  of  individuals,  when  re- 
quired for  the  purposes  of  the  canal,  when  the  consent  of  the 
owners  cannot  be  obtained,  and  to  proceed  to  the  execution  of 
such  works  as  may  be  requisite.  "And,  that  the  pendency  of 


HARNESS  VS.  CHESAPEAKE  AND  OHIO  CANAL  CO.      255 

any  suit,  in  the -nature  of  a  writ  of  ad  quod  damnum,  or  any 
other  proceedings,  shall  not  hinder  or  delay  the  progress  of  the 
work." 

This  section,  it  is  said,  not  only  relieves  the  company  from 
any  obligation  to  pay,  during  the  pendency  of  proceedings  in- 
stituted to  condemn  the  land,  but  it  is  insisted,  the  pendency 
of  any  other  proceeding,  such  as  the  present  for  instance,  is  a 
sufficient  answer  to  the  demand  of  payment.  In  this  construc- 
tion of  the  section,  I  do  not  concur.  It  appears  to  be  manifest, 
that  the  legislature  had  in  view,  proceedings  instituted  to  con- 
demn the  land,  and  not  any  litigation,  which  might  arise 
between  the  parties,  with  reference  to  the  payment,  or  to  en- 
force payment  of  the  money,  after  the  condemnation  should  be 
complete. 

The  legislature  saw,  that  unless  this  power  was  given,  the 
work  might  be  delayed  by  spinning  out  the  proceedings  con- 
nected with  the  condemnation,  and  before  the  valuation  could 
be  determined,  and  of  course  before  it  could  be  paid,  and  the 
law,  therefore,  provides,  that  pending  the  proceedings  neces- 
sary to  ascertain  the  valuation,  the  progress  of  the  work  should 
not  be  arrested.  The  construction  contended  for,  by  the  de- 
fendant, would  delay  the  payment  of  the  money  so  long  as  any 
litigation  between  the  parties  having  any  connection  with  it, 
could  be  kept  on  foot,  though  all  the  proceedings  necessary  to 
the  condemnation  should  be  finally  concluded.  If  any  doubt 
could  be  entertained,  with  regard  to  the  construction,  which,  I 
think,  should  be  given  to  this  section,  it  would,  in  my  opinion, 
be  removed  by  the  latter  clause  of  it,  which  directs  the  courts  to 
give  precedence  to  controversies  between  the  company,  and  the 
proprietors  of  lands  sought  to  be  condemned  for  public  uses. 
This  direction  indicates,  not  only  the  parties  to  whose  contro- 
versies precedence  is  to  be  given  by  the  courts,  but  the  subject 
of  such  controversies.  They  must  be  between  the  company 
on  the  one  hand,  and  the  proprietors  of  lands  on  the  other, 
which  lands  the  company  is  seeking  to  condemn.  But  to  say, 
that  after  the  condemnation  is  complete,  and  the  amount  to  be 
paid  is  ascertained,  any  proceeding  instituted  by  the  proprietor 


256  HIGH  COURT  OF  CHANCERY. 

of  the  land,  to  protect  his  property,  until  the  sum  ascertained 
shall  be  paid,  would  justify  the  using  the  land,  and  at  the  same 
time  withholding  payment,  would,  in  my  opinion,  be  pushing 
the.  provision  of  the  section  in  question  far  beyond  the  intention 
of  the  legislature. 

If  this  position  can  be  maintained,  then  any  proceeding,  legal 
or  equitable,  which  the  proprietors  of  the  land  condemned 
may  adopt  .to  protect  it  from  injury  until  the  value  ascertained 
by  the  inquisition  is  paid,  will  be  an  excuse  for  not  paying, 
whilst  the  company  will  be  at  liberty  to  proceed  in  the  con- 
struction of  the  canal  without  interruption.  Certainly  the  ne- 
glect to  pay,  when  the  sum  is  ascertained,  is  the  fault  of  the 
company,  of  which  the  consequences  should  be  visited  upon 
them. 

The  principle  settled  by  the  Court  of  Appeals,  in  the  case  of 
the  Canal  Company  vs.  Rail  Road  Company,  4  G.  fy  «/.,  1,  is, 
that  every  law  which  is  to  wrest  from  an  individual  his  prop- 
erty without  his  consent,  must  be  strictly  construed ;  that  is, 
must  receive  a  construction  which  will  work  as  little  injury  as 
possible  to  the  individual,  consistently  with  the  great  object  of 
public  utility,  for  which,  alone,  this  high  sovereign  power  can 
be  exerted.  My  construction  of  this  section,  is,  that  it  gives 
to  the  canal  company,  the  temporary  right  to  enter  upon  the 
land  of  individuals,  with  whom  they  cannot  agree,  and  proceed 
with  their  work,  during  the  pendency  of  such  proceedings, 
whether  by  writ  of  ad  quod  damnum,  or  otherwise,  as  may  be 
necessary  to  give  them  the  title  in  the  mode  authorized  by 
their  charter  ;  but,  that  after  such  proceedings  have  been  con- 
cluded by  the  inquisition  of  the  jury,  and  the  affirmation  of 
that  inquisition  by  the  court,  the  temporary  privilege  given  by 
the  act  is  at  end,  and  they  may  be  restrained  by  injunction,  if 
an  attempt  is  made  to  carry  it  further.  And  such,  unquestion- 
ably, was  the  opinion  of  Chancellor  Kent,  in  the  case  already 
referred  to,  and  in  the  other  case  cited  in  the  2d  vol.  of  his 
Com.,  340,  in  the  note. 

I  take  it,  therefore,  as  clear,  that  after  the  jury  in  this  case, 
had  fixed  the  amount  to  be   paid  to  these  complainants,  and 


HARNESS  VS.  CHESAPEAKE  AND  OHIO  CANAL  CO.      257 

after  their  rinding  had  been  affirmed  by  the  court,  the  canal 
company  had  no  right  to  enter  upon,  and  commence  cutting 
their  canal  through  these  lands,  without  paying  the  money,  and 
that  having  so  entered  upon,  and  commenced  cutting,  the  obli- 
gation to  pay  was  perfect. 

The  language  of  the  15th  section  of  the  act  is,  that  the 
"valuation  of  the  jury  shall  be  conclusive  on  all  persons,  and 
shall  be  paid  by  the  president  and  directors,  to  the  owner  of 
the  land,  or  his  legal  representative." 

It  seems  impossible  to  say,  in  the  face  of  such  language, 
that  there  is  not,  and  was  not,  when  the  canal  company  took 
possession  of  the  lands  of  these  parties,  and  commenced  exca- 
vating their  canal,  an  absolute,  unqualified,  and  immediate 
obligation  to  pay  the  money,  and  that  they  could  upon  any 
pretext  whatever  delay  it. 

The  defendants,  however,  contend,  as  already  observed,  that 
conceding  all  this  to  be  true,  the  complainants  have  precluded 
themselves  from  asking  the  relief  sought  by  this  bill,  by  taking 
the  acceptances  of  the  company,  and  giving  the  receipt  before 
spoken  of.  If  the  Chancellor  is  right  in  the  view  presented  of 
the  obligation  of  the  company  to  pay  before,  or  concurrently 
with  the  actual  seizure  and  entry  upon  these  lands ;  then  it 
follows,  that,  on  the  1st  April,  1840,  the  date  of  the  accept- 
ances, the  valuation  of  the  jury  was,  and  had  been  for  some 
time,  payable  ;  for  the  evidence  clearly  shows,  that  prior  to  that 
date  the  defendants  had  entered  upon  the  lands  and  commenced 
cutting  their  canal. 

Assuming,  then,  that  prior  to  the  date  of  these  acceptances 
there  was  due  from  the  canal  company,  the  sum  ascertained  by 
the  jury,  which  sum,  in  the  language  of  the  charter,  was  to  be 
paid  by  the  company  to  the  owner  of  the  land,  or  his  legal 
representatives,  it  was  simply  giving  acceptances  for  a  pre-ex- 
isting debt,  and  it  is  too  clear  for  argument,  that  the  taking  of 
them  by  the  creditor  could  not  have  the  effect  of  extinguishing 
the  former  debt.  Insurance  Co.  vs.  Smith,  6  H.  fy  J.,  169 ; 
Glenn  vs.  Smith,  2  G.  8f  J.,  508  ;  Wayman  vs.  Roe,  11  G.  if 
J.,  425. 

22* 


258  HIGH  COURT  OF  CHANCERY. 

But  it  is  said,  that  though  the  mere  giving  the  acceptances 
would  not  extinguish  the  antecedent  debt,  yet  that  an  express 
agreement  to  that  effect  would  produce  such  extinguishment, 
and  that  the  receipt  given  by  Wm.  Harness,  in  this  case,  is  suf- 
ficient evidence  of  such  agreement. 

It  is  to  be  recollected,  however,  that  it  was  not  the  bill  or 
note  of  a  third  person,  which  was  given  for  the  debt  of  the 
company,  ^but  its  own  acceptance,  and  consequently  no  addi- 
tional security  was  obtained. 

A  creditor  might  be  well  presumed  to  give  up  his  claim  upon 
his  original  debtor,  upon  receiving  the  obligation  of  a  third 
person,  in  whose  solvency  he  had  greater  confidence,  but  it  is 
very  difficult  to  assign  a  reason,  and  certainly  no  authority  has 
been  produced  to  show  a  motive  to  induce  a  creditor  to  surren- 
der his  right  to  resort  to  his  original  cause  of  action,  upon 
merely  receiving  from  his  debtor  an  obligation  of  equal  dignity. 
The  receipt  in  this  case  I  do  not  understand  to  amount  to  an 
express  agreement  to  look  exclusively  to  the  acceptances,  and 
to  abandon  any  right  which  the  complainants  may  have  had  to 
insist  on  payment  of  the  money,  before  their  land  was  used  for 
the  purposes  of  the  canal.  It  would  not,  in  my  judgment, 
amount  to  an  extinguishment  or  payment  of  the  precedent  debt, 
even  if  the  acceptances  had  been  those  of  a  third  party,  and  a 
fortiori,  cannot  have  that  effect  when  they  are  merely  the  en- 
gagement of  the  original  debtor. 

The  opinion  of  the  Court  of  Appeals,  in  the  case  of  Glenn  vs. 
Smith,  2  G.  fy  J.,  493,  and  the  case  of  Putnam  vs.  Lewis,  8 
Johnson's  Reports,  389,  cited  with  approbation  by  the  Court  of 
Appeals,  are,  I  think,  conclusive  upon  the  question. 

The  defendants,  however,  insist,  that  even  if  the  giving  and 
receiving  the  acceptances  will  not  have  the  effect  contended 
for,  still,  when  judgment  was  obtained  upon  those  acceptances 
there  was  a  merger  of  the  original  indebtedness,  and  the  remedy 
of  the  complainants  is  only  upon  the  judgment. 

If,  however,  the  inquisition  of  the  jury,  when  returned  to  and 
affirmed  by  the  court,  constitutes  a  debt  at  all,  it  is  a  debt  of 
record,  and  of  equal  grade  with  the  judgment.  The  terms  of 


HARNESS  VS.  CHESAPEAKE  AND  OHIO  CANAL  CO.        259 

the  act  of  assembly  are,  "that  unless  good  cause  be  shown 
against  the  inquisition,  it  shall  be  affirmed  by  the  court  and  re- 
corded." And,  therefore,  assuming  the  inquisition,  when  thus 
affirmed  and  recorded,  to  constitute  a  debt,  it  is  a  debt  of  record, 
and  consequently  not  merged  by  the  judgment,  which  is  of  no 
higher  dignity. 

But,  according  to  my  view  of  this  case,  the  question  of  mer- 
ger does  not  arise.  The  legislature,  by  the  act  of  1824,  pro- 
vided a  mode  by  which,  in  certain  specified  contingencies,  this 
company  was  authorized  to  appropriate  to  its  use  the  land  of 
individuals  without  their  consent,  upon  the  condition,  that  they, 
the  company,  should  pay  therefor  such  a  valuation  as  a  jury 
should  put  upon  it.  This  valuation,  by  the  letter  of  the  law, 
is  made  conclusive  upon  all  persons,  and  is  to  be  paid  by  the 
company,  and  it  is  only  on  payment  thereof  that  the  title  passes. 

Now,  it  seems  to  me  very  clear,  no  matter  what  arrangements 
are  made  between  the  parties  for  the  payment  of  the  money,  or 
what  securities  may  be  given  for  it,  the  owner  has  a  right 
at  any  time  upon  failure  of  the  securities,  to  call  upon  the 
court  to  protect  his  property  from  injury  until  the  money  is 
paid.  It  does  not  appear  to  me  to  be  material,  whether  the 
owner  is  bound  in  any  active  measures  he  may  adopt  to  recover 
the  money,  to  proceed  exclusively  upon  his  judgment  or  not. 
If  he  can  show,  as  is  shown  here,  that  the  judgment  was  ren- 
dered for  the  money  which  the  jury  fixed  as  the  value  of  the 
land  ;  that  it  has  not  been  paid;  and  that  there  is  serious  dan- 
ger of  irreparable  injury  to  the  owner,  unless  this  court  will  in- 
terpose to  hinder  the  company  from  using  the  property,  I  can- 
not see  how  his  request  for  the  aid  of  the  court  can  be  refused. 
The  law  says,  (except  during  the  pendency  of  the  proceedings 
provided  for  in  the  19th  section,)  that  the  owner's  property 
shall  not  be  taken  from  him,  and  used  for  the  purposes  of  the 
company,  until  the  valuation  put  upon  it  by  the  jury  is  first 
paid.  And  I  cannot  see  how  this  right  can  depend  upon  the 
character  or  form  of  the  security  given  by  the  company  for  the 
payment.  If  the  owner  has  a  right  to  insist  upon  the  payment 
of  the  money  before  his  property  is  wrested  from  him,  (and 


260  HIGH  COURT  OF  CHANCERY. 

such  right  cannot  be  disputed,)  what  is  to  prevent  him  from 
invoking  the  aid  of  the  court,  for  his  protection,  if  the  judg- 
ment given  for  the  money  remains  unpaid. 

The  argument  that  the  judgment  is  no  more  than  a  general 
lien,  does  not  militate  against  this  right  of  the  owner  of  the 
land.  His  title  to  the  protection  of  the  court  does  not  rest 
upon  his  rights  as  a  judgment  creditor,  but  upon  the  act  of  as- 
sembly, and  upon  that  settled  and  fundamental  doctrine  accord- 
ing to  which  the  owner  of  property,  taken  for  the  public  use,  is 
entitled  to  compensation,  and  as  Chancellor  Kent  says,  to  have 
it  paid  before,  or  at  least  concurrently  with  the  seizure  and  ap- 
propriation of  it. 

The  complainants  in  this  bill  do  not  ask  the  court  to  enforce 
the  payment  of  their  judgment;  but  showing  the  judgment  to 
be  for  the  sum  awarded  by  the  jury,  and  stating  other  facts  in- 
dicative of  peril  to  their  interests,  unless  the  arm  of  this  court 
is  extended  to  their  relief,  they  ask  that  the  property  condemned 
may  be  protected  from  injury  until  the  money  is  paid,  and  this, 
in  my  judgment,  they  have  a  right  to  ask. 

The  only  remaining  question  relates  to  the  obligation  of  the 
company  to  pay  interest  on  the  sum  fixed  by  the  inquisition. 
The  bill  prays,  that  they  may  be  restrained  by  injunction  from 
digging  their  canal  through  the  lands  of  the  complainants  men- 
tioned and  described  in  the  inquisition,  without  first  paying  to 
them  the  sum  of  $13,256,  with  interest  thereon,  from  the  8th 
day  of  October,  1838,  or  until  the  further  order  of  the  court. 

The  defendants  deny  their  obligation  to  pay  interest,  and 
this  is  one  of  the  principal  points  in  dispute  between  the 
parties. 

It  is  shown  by  the  evidence  that  very  shortly  after  the  affirm- 
ation of  the  inquisition,  on  the  8th  of  October,  1838,  the  de- 
fendants entered  upon  the  land,  and  commenced  cutting  their 
excavations  ;  and,  consequently,  as  I  apprehend,  their  liability 
to  pay  the  money  was  then  complete.  They  had  no  right  to 
enter  upon  the  land  at  all,  except  under  the  circumstances  men- 
tioned in  the  19th  section,  without  first  paying  the  money. 

Being  so  liable,  the  obligation  to  pay  interest  would  seem  to 


HARNESS  VS.   CHESAPEAKE  AND  OHIO  CANAL  CO.        261 

follow  as  of  course,  unless  there  are  other  circumstances  exon- 
erating them  from  the  duty.  The  defendants  insist  that,  inas- 
much as  the  complainants  have  to  some  extent  cultivated  these 
lands  since  the  condemnation,  their  responsibility  for  interest  is 
removed.  It  would  be  unreasonable,  certainly,  that  the  com- 
plainants should  hold  and  cultivate  the  lands,  and  at  the  same 
time  make  the  defendants  pay  interest  upon  the  sum  awarded 
them  by  the  jury,  as  the  measure  of  compensation  for  their  loss. 
But  in  view  of  the  evidence  upon  this  subject,  and  looking  to 
the  very  partial  and  imperfect  enjoyment  of  the  property,  by 
the  complainants  since  the  defendants  commenced  their  opera- 
tions upon  the  land,  I  cannot  bring  myself  to  consider  that  suf- 
ficient answer  has  been  given  to  the  demand  of  interest.  If, 
however,  the  court  had  any  doubt  upon  this  subject,  it  would 
be  removed  by  the  conduct  of  the  parties  themselves.  On  the 
1st  of  April,  1840,  we  have  seen,  the  defendants  accepted  drafts 
for  this  money  with  interest  from  the  8th  of  October,  1838, 
upon  which  in  October,  1842,  they  confessed  judgments.  Here 
then  we  have  the  solemn  acknowledgment  of  the  company,  that 
it  was  liable  to  pay  interest  upon  this  money,  twice  repeated. 
How  can  this  court,  in  the  face  of  these  acknowledgments  of 
the  company,  say  they  are  not  liable  to  pay  interest  ?  The 
court  must  assume,  and  does  assume,  that  these  acceptances 
were  given  in  good  faith,  and  when  the  company  had  a  reason- 
able expectation  of  paying  them  as  they  matured,  and  not  that 
they  were  given  for  the  purpose  of  taking  from  the  complain- 
ants the  right  to  resort  to  the  courts  for  the  protection  of  their 
property,  if  subsequent  events  should  render  it  necessary,  or  as 
has  been  suggested,  to  get  rid  of  the  specification,  which  it  is 
supposed  the  complainants  may  have  had  upon  this  land  for 
the  sum  awarded  them  by  the  jury.  The  acceptances  were 
given,  as  I  must  presume,  with  the  expectation  of  paying  them, 
and  because  the  defendants  considered  themselves  liable  to  pay 
the  money,  with  interest.  This  was  their  then  understanding 
of  their  obligation,  and  I  can  see  nothing  in  the  case  to  relieve 
them  from  the  performance  of  it. 

I  shall,  therefore,  sign  a  decree  perpetuating  the  injunction, 


262  HIGH   COURT  OF   CHANCERY. 

or  at  least  continuing  it  in  force,  until  the  defendants  shall  pay 
the  said  sura  of  $13,256,  with  interest  from  the  8th  of  October, 
1838.  And  shall  also  decree  the  payment  of  costs  as  against 
the  canal  company  ;  but  the  plaintiffs  must  pay  the  costs  of 
the  officers  of  the  corporation  who  were  made  defendants  for 
the  purpose  of  discovery.  Fulton  Bank  vs.  JV*.  Y.  and  Sharon 
Canal  Company,  4  Paige,  131. 

[No  appeal  was  taken  from  this  decree.] 


EDWARD  GREEN,  TRUSTEE,        } 

vs.  > 

TRUE  PUTNEY  AND  HUGH  RIDDLE. 3 

[TRUSTEES,  THEIR  POWERS  AND  ALLOWANCES  TO  THEM.] 

WHEN  a  trustee,  appointed  by  this  court  to  sell  property  and  bring  the  proceeds 
in  to  be  disposed  of  under  its  orders,  disburses  money  without  competent  au- 
thority, he  will  be  chargeable,  as  if  the  money  was  in  hand. 

This  principle  cannot  be  applied  with  the  same  rigor  to  a  trustee  acting  under 
a  deed,  giving  express  authority  to  pay  debts. 

Nor,  does  the  fact,  that  such  a  trustee  applies  to  a  court  of  equity  for  its  direc- 
tion and  assistance  in  the  execution  of  his  trust,  place  him  in  the  predicament 
of  a  trustee  of  the  court's  appointment,  with  powers  limited  and  defined  by 
the  decree. 

If  such  trustee  thinks  proper  himself  to  disburse  the  fund,  he  cannot  be  called 
upon  to  bring  it  into  court,  unless  the  disposition  which  he  has  made  of  it 
is  shown  to  be  improper. 

Where  the  trustee,  by  the  terms  of  the  deed  creating  the  trust,  was  entitled  to 
an  allowance  for  costs  and  expenses  attending  its  execution,  such  allowances, 
should  the  nature  of  the  trust  and  the  circumstances  of  the  case  require  it, 
will  embrace,  even  without  an  express  provision,  the  expense  of  employing 
an  attorney. 

[Edward  Green,  the  trustee,  under  a  deed  from  True  Putney 
and  Hugh  Riddle,  dated  29th  of  August,  1839,  conveying  to 
him  a  large  amount  of  property,  real  and  personal ;  also,  trans- 
ferring to  him  all  debts  and  claims  due  them  as  partners,  and 
evidences  of  debt  of  every  description  in  trust  for  the  benefit  of 


GREEN  VS.  PUTNEY.  263 

creditors,  filed  his  petition  in  November,  1841,  on  the  equity 
side  of  Baltimore  County  Court,  stating  his  receipt  of  a  por- 
tion of  the  trust  fund,  and  praying  leave  to  distribute  the  same 
under  the  authority  of  the  court.  On  the  30th  of  November, 
1842,  about  two-thirds  in  amount  of  the  creditors  of  Putney 
and  Riddle  assigned  to  the  latter  all  the  interest  of  the  assign- 
ors in  a  claim  which  the  assignees  had  against  the  United 
States  for  losses  sustained  by  them,  in  the  performance  of  a 
contract  with  the  government,  for  building  a  warehouse  in  the 
city  of  Baltimore ;  this  claim  was  to  be  prosecuted  by  the  as- 
signees for  their  own  use;  and  a  reservation  was  made  by  the 
assignors  of  their  interests  and  dividends  in  the  property,  and 
the  rest  of  the  claims  conveyed  to  Green.  The  amount  recov- 
ered from  the  government  under  the  claim  for  losses,  was 
$9,672  61,  which,  after  the  deduction  of  expenses  and  com- 
missions was  distributed  among  the  creditors  of  Putney  and  Rid- 
dle, they  themselves  receiving  under  the  above  mentioned  as- 
signment, the  sum  of  $5,621  33.  The  money  recovered  from 
the  government  had  been  received  by  Green,  as  trustee,  and 
distributed  under  the  directions  of  the  Baltimore  County  Court, 
by  the  Auditor  of  that  court,  in  an  account  accompanying  his 
report  of  the  16th  of  January,  1845.  The  trustee  received  the 
further  sum  of  $13,985  38,  as  due  Putney  and  Riddle  for  work 
done  for  the  government.  This  sum  was  paid  to  Green,  as 
trustee,  under  the  deed  described  above ;  and  also,  as  perma- 
nent trustee  of  Putney,  who  had  taken  the  benefit  of  the  insol- 
vent laws,  in  1840.  During  the  prosecution  of  this  claim,  on 
the  31st  of  December,  1842,  Putney  and  a  certain  Peter  Gor- 
man entered  into  an  agreement,  by  which  Gorman,  in  consider- 
ation of  his  furnishing  the  necessary  funds  for  its  prosecution, 
was  to  receive  one-half  of  Putney's  share,  should  any  thing  be 
recovered.  On  the  27th  of  September,  1844,  Putney,  Riddle 
and  Gorman,  who  were  engaged  in  buying  up  claims  against 
the  firm  of  Putney  and  Riddle,  entered  into  a  written  agreement 
by  which  it  was  stipulated,  that  in  the  purchases  of  that  de- 
scription already  made,  and  in  those  thereafter  to  be  made,  the 
parties  should  contribute  rateably,  that  is,  Riddle  should  con- 


264  HIGH    COURT    OF  CHANCERY. 

tribute  one-half,  and  the  others  each  one-fourth ;  the  proceeds 
of  the  claims  and  dividends  so  purchased,  to  be  divided  in  the 
same  proportion.  On  the  exhibition  of  the  agreement  between 
Putney  and  Gorman,  one-fourth  of  the  sum  awarded  to  Putney 
and  Riddle  by  the  Auditor's  report  of  the  16th  of  January, 
1845,  was,  by  order  of  the  court,  directed  to  be  paid  to  Gor- 
man. Under  the  agreement  of  September,  1844,  Gorman  and 
Riddle  purchased  and  took  assignments  from  numerous  cred- 
itors of  Putney  and  Riddle,  including  those  already  assigned  to 
the  two  latter.  Counsel  were  employed  by  Gorman  and  Rid- 
dle to  prosecute  the  claim  against  the  government  for  work 
done  and  materials  provided  in  the  erection  of  the  warehouse 
in  Baltimore,  who  were  to  receive  one-half  of  Gorman  and  Rid- 
dle's share  of  the  money  recovered,  and  Green  agreed  to  allow 
them  the  same  proportion  of  what  he  would  be  entitled  to  as  trus- 
tee. By  a  subsequent  agreement  between  Gorman  and  Riddle  and 
two  of  their  counsel,  it  was  stipulated,  that  the  sums  expended 
by  the  two  former  in  purchasing  claims  should  be  first  deducted 
from  the  amount  recovered,  and  the  counsel  should  receive  one- 
half  of  the  residue.  The  amount  received  by  Green  from  the 
government,  on  account  of  this  claim,  was  $13,985  38,  and  the 
counsel  and  Gorman  and  Riddle,  desiring  to  have  a  settlement, 
had  a  meeting  for  that  purpose,  on  the  2d  of  September,  1846, 
and  three  papers  were  executed  by  them,  by  the  first  of  which 
they  waived  any  right  which  they  might  have  to  the  sum  of 
$2000,  retained  by  Green  for  distribution,  under  the  direction 
of  the  court ;  amongst  the  parties  entitled  by  the  second, 
Gorman  and  Riddle  were  allowed  $2500  for  moneys  expend- 
ed in  buying  up  claims  against  Putney  and  Riddle,  and 
Green  was  allowed  $600  for  commissions  on  the  money  then  in 
his  hands,  and  the  further  sum  of  $200  for  defraying  future 
costs  and  charges.  Of  the  residue  of  said  sum,  after  making 
these  deductions,  one-half  was  to  be  paid  to  the  counsel  by 
Green,  for  which  he  was  to  be  allowed  credit.  The  object  of 
the  third  paper  was  to  indemnify  Green,  who  had,  on  that  day, 
advanced  the  sum  of  $5,842  69  to  Gorman  and  Riddle,  in  case 
he  should  not,  as  trustee,  be  allowed  for  it.  By  an  agreement 


GREEN  VS.  PUTNEY.  265 

between  Green  and  Gorman  and  Riddle,  made  on  the  31st  of 
January,  1845,  Green  waived  his  right  to  the  commissions  on 
any  sum  obtained  by  the  two  latter  from  the  United  States  on 
their  own  receipt,  but  was  to  receive  $100  in  case  he  had  to 
pass  his  receipt  therefor.  By  a  subsequent  agreement  between 
them,  he,  Green,  was  to  take  an  active  part  in  obtaining  the 
money,  and  was  to  be  properly  compensated  therefor. 

This  case  was,  by  order,  dated  the  17th  of  November,  1846, 
removed  to  this  court,  and  the  questions  presented  to  the  Chan- 
cellor ar.ose  on  exceptions  to  the  reports  of  the  Auditor  of  the 
Baltimore  County  Court.] 

THE  CHANCELLOR  : 

It  is  said  that  Green,  the  trustee,  must  not  only  bring  into 
court  the  sum  of  $2,800,  mentioned  in  the  order,  12th  of  Feb- 
ruary, 1847,  which  was  passed  by  consent ;  but  he  must  also  bring 
in  the  amount  which  he  paid  the  counsel  on  the  2d  of  September, 
1846,  and  the  court  is  called  upon  by  Putney  and  Gorman  and 
Riddle  to  compel  him  to  do  so. 

The  argument  of  the  counsel  for  Putney  is,  that  a  trustee 
who  disburses  money  without  competent  authority,  is  charge- 
able, as  if  the  money  was  in  hand. 

However  true  this  may  be  with  regard  to  a  trustee  appointed 
by  this  court  to  sell  property,  and  bring  the  proceeds  in  to  be 
disposed  of  under  its  orders,  the  principle  cannot  surely  be  ap- 
plied with  the  same  rigor  to  a  trustee  acting  under  a  deed  giv- 
ing express  authority  to  pay  debts,  and  the  circumstance,  that 
the  trustee  in  this  case  applied  to  the  court  for  its  direction  and 
assistance  in  the  execution  of  his  trust,  does  not  place  him  in 
the  predicament  of  a  trustee  of  the  court's  appointment,  with 
powers  limited  and  defined  by  the  decree.  If  the  trustee,  not- 
withstanding his  application  to  the  court  for  directions,  thinks 
proper  himself  to  disburse  the  fund,  he  cannot  be  called  upon 
to  bring  it  into  court,  unless  the  disposition  which  he  has  made 
of  it,  is  shown  to  be  an  improper  one. 

Now,  so  far  as  Gorman  and  Riddle  are  concerned,  and  to  the 
extent  of  their  interest  in  the  fund,  it  would  seem  impossible, 
VOL  I.—23 


266  HIGH  COURT  OF  CHANCERY. 

that  the  application  with  regard  to  this  payment  can  be  success- 
ful. Their  agreement  on  the  24th  of  August,  1844,  and  the 
papers  signed  by  them,  on  the  2d  of  September,  1846,  when 
they  themselves  received  85,842  69,  of  this  same  money,  seems 
to  me  effectually  to  conclude  them  from  objecting  to  the  pay- 
ment of  the  counsel. 

But,  it  is  said,  that  this  payment  to  the  counsel  cannot  prej- 
udice the  rights  of  Putney,  because  the  agreement  of  the  24th 
of  August,  1844,  under  which  it  was  paid,  was  not  signed  by 
him. 

It  is  to  be  recollected,  however,  that  upon  the  record  as  it 
stood  on  the  2d  of  September,  1846,  the  date  of  the  payment, 
Gorman  and  Riddle,  who  did  make  the  agreement  with  the 
counsel,  were  the  assignees  of  the  claims  of  creditors  to  the 
amount  of  $12,767  48,  and,  therefore,  Green  may  have  been 
excusable  in  treating  them  as  entitled  to  make  any  contract  they 
saw  fit  in  regard  to  the  fund. 

I  do  not  concur  with  the  counsel  for  Putney  in  the  position, 
that  under  the  assignment  of  November,  1842,  to  Putney  and 
Riddle  the  creditors  transferred  to  them  any  and  every  sum 
which  might,  or  should  be  recovered  from  the  United  States. 
On  the  contrary  the  assignment  is  expressly  restricted  to  any 
claim  they  might  have  upon  the  government,  for  losses  sustain- 
ed by  them  in  the  performance  of  their  contract  with  the  gov- 
ernment ;  every  other  claim  of  the  creditors  founded  upon  the 
deed  to  Green  being  reserved. 

It  does  not  distinctly  appear  upon  what  ground  the  sura  now 
in  question  was  paid — whether  it  was  paid  as  a  further  indem- 
nity for  losses,  and  if  so,  covered  by  the  assignment  of  1842, 
or  whether  it  was  paid  under  the  contract  with  the  government, 
by  Putney  and  Green,  and  if  so,  not  covered  by  the  said  assign- 
ment, according  to  my  understanding  of  it.  The  fifth  report  of 
the  trustee  leaves  this  question  in  some  doubt. 

But,  be  this  as  it  may,  it  is  very  certain  the  parties  did  not 
treat  the  assignment  of  1842  as  absolute,  and  as  transferring  the 
entire  interest  of  the  creditors  to  any  sum  which  might  be  re- 
covered from  the  government. 


GREEN  VS.  PUTNEY.  267 

There  is  another  view  of  this  subject  which  has  a  strong  ten- 
dency, in  my  judgment,  to  justify  Green,  the  trustee,  in  paying 
these  fees  to  the  counsel.  He  was,  by  the  terms  of  the  deed  of 
August,  1839,  creating  the  trust,  entitled  to  an  allowance  for 
costs  and  expenses  attending  its  execution,  inclusive  of  a  rea- 
sonable commission  to  himself;  and  such  allowances,  should 
the  nature  of  the  trust  and  the  circumstances  of  the  case  re- 
quire it,  will  embrace,  even  without  an  express  provision,  the 
expense  of  employing  an  attorney.  Willis  on  Trustees,  146, 
147 ;  10  Law  Lib.,  69;  Hagthrop  vs.  Hook,  1  Gill  fy  Johns., 
273  ;  2  Mod.  Ch.  Prac.,  158. 

In  this  case,  it  is  manifest,  that  notwithstanding  the  assign- 
ments of  the  creditors  to  Putney  and  Riddle  and  Gorman,  that 
the  agency  and  active  exertions  of  the  trustee  were  indispensa- 
ble to  the  recovery  of  the  money  from  the  United  States,  he 
being  considered  by  the  government,  the  party  alone  authorized 
to  receive  it. 

Now  assuming,  for  the  sake  of  the  argument,  that  Putney, 
was  entitled  to  one-fourth  of  this  fund,  (and  that  is  certainly  the 
extent  of  his  claim,)  was  not  Green,  as  his  trustee,  authorized 
to  unite  with  Riddle  and  Gorman,  the  owners  of  the  other  three- 
fourths,  in  the  contract  which  they  made  with  the  council  upon 
the  subject  of  fees  ?  Was  not  this  agreement  on  the  part  of 
the  owners  of  three-fourths  of  the  claims,  the  strongest  possible 
evidence  of  the  reasonableness  of  the  compensation. 

The  court  is  without  the  necessary  data  to  found  a  very 
satisfactory  opinion  upon  the  subject ;  but,  seeing  that  parties 
interested  to  the  extent  of  three-fourths  made  this  contract,  and 
forming  the  best  judgment  I  can,  from  the  lights  before  me  of 
the  difficulties  which  had  to  be  surmounted,  before  the  claim 
could  be  allowed,  I  am  not  disposed  to  visit  upon  the  trustee 
loss  on  account  of  it. 

I  am  of  opinion,  therefore,  that  Green  is  entitled  to  be  allow- 
ed for  this  payment  to  the  counsel,  not  only  as  against  Gorman 
and  Riddle,  but,  as  against  Putney,  also. 

The  next  question  relates  to  the  trustee's  claim,  to  be  allowed 
for  the  sums  of  $600,  and  $200,  provided  for  in  the  paper 


268  HIGH  COURT  OF   CHANCERY. 

marked  B,  and  signed  on  the  2d  September,  1846,  by  the 
counsel,  and  Gorman  and  Riddle.  The  counsel  for  Putney 
insists,  that  the  trustee's  demand  for  commissions  must  be  lim- 
ited to  the  sum  of  $100,  as  provided  in  the  contract  of  the  31st 
January,  1845,  and  signed  by  the  counsel,  and  Gorman  and 
Riddle.  It  is  true,  that  by  that  contract,  the  trustee  did  agree 
to  receive  only  the  sum  of  $100,  in  the  event  of  his  being  re- 
quired by  the  government,  to  give  his  receipt  for  any  moneys 
which  might  be  recovered  ;  but,  it  is  equally  true,  that  by  the 
subsequent  contract  of  the  2d  January,  1846,  signed  by  two  of 
the  counsel,  and  Gorman  and  Green,  the  trustee,  it  was  stipu- 
lated, that  the  latter  should  receive  a  proper  compensation  out 
of  these  moneys.  By  the  agreement  of  1845,  which  limits  the 
trustee's  allowance  for  commissions  to  the  $100,  it  is  evident, 
that  he  was  to  be  merely  passive ;  passing  his  receipt  for  the 
money,  if  required  to  do  so  by  the  government,  but  making  no 
exertion  to  recover  it ;  whilst  by  that  of  1846,  he  engaged  to 
exert  himself  to  secure  the  payment  of  the  claim  by  the  govern- 
ment, and  to  prevent  any  difficulties  which  the  creditors  might 
interpose,  and  hence  the  modification  of  the  agreement,  with 
regard  to  commissions. 

So  far  as  Gorman  and  Riddle  are  concerned,  they  being 
parties  to  the  paper  marked  B,  the  allowance  to  the  trustee  of 
these  sums  is  not  to  be  questioned.  And,  if  Putney  seeks  to 
avail  himself  of  the  agreement  of  January,  1845,  to  cut  the 
trustee  down  to  $100,  he  must  also  submit  to  be  bound  by  that 
of  January,  1846,  which  stipulated,  that  the  trustee  should 
receive  a  proper  compensation  for  the  services  therein  agreed 
to  be  performed. 

Putney  was  no  party  to  either  of  these  contracts,  and  he  can- 
not be  permitted  to  have  the  benefit  of  the  one,  without  being 
bound  by  the  other.  He  must  take  both,  or  neither.  And  if 
he  repudiates  both,  the  parties  are  thrown  back  upon  the  deed 
of  trust,  of  1839,  under  which  the  trustee  is  in  terras  entitled  to 
a  reasonable  commission,  and  his  expenses.  I  think,  there- 
fore, that  Green,  the  trustee,  is  to  be  allowed  for  these  two 
sums. 


GREEN  VS.  PUTNEY.  269 

We  have  seen,  that  by  the  agreement  of  the  2d  September, 
1846,  marked  B,  between  the  counsel,  and  Gorman  and  Riddle, 
the  latter  were  to  be  allowed  the  sum  of  $2500,  for  expenses 
incurred  by  them  in  purchasing  claims  against  Putney  and  Rid- 
dle, and  that,  by  the  previous  agreement  of  the  27th  Septem- 
ber, 1844,  between  Putney,  and  Gorman  and  Riddle,  those 
three  parties  were  to  contribute  towards  such  purchases  rate- 
ably,  and,  that  any  money  which  might  be  recovered  from  the 
government,  was  to  be  distributed  in  like  manner.  The  pro- 
portion of  contribution,  and  distribution,  being  one-half  to 
Riddle,  one-fourth  to  Putney,  and  one-fourth  to  Gorman. 

It  appears  by  the  trustee's  sixth  report  to  Baltimore  County 
Court,  that  of  the  money  received  from  the  government,  the 
trustee  advanced  to  Riddle  and  Gorman,  as  assignees  of  the 
creditors  of  Putney  and  Riddle,  the  sum  of  $4592  69,  but  the 
paper  signed  by  them,  marked  C,  shows  that  the  whole  amount 
advanced  them  was  $5842  69,  the  difference  being  $1250,  or 
one-half  of  the  sum  stated  to  have  been  expended  in  purchas- 
ing up  the  claims  of  creditors.  I  am  at  a  loss  to  understand 
how  this  allowance  can  be  disputed  by  Putney. 

The  state  of  the  account,  then,  would  seem  to  be  as  follows : 
The  amount  received  by  Green  was  .  .  $13,985  38 
Paid  counsel,  .  $5,342  67 

Paid  Gorman  and  Riddle  5,842  69 

11,185  36 


Leaving  in  his  hands  the  sum  of    .         .  $2,800  02 

being  within  a  fraction  the  amount  which,  by  the  order  of  12th 
February,  1847,  passed  by  consent  of  parties,  he  was  directed 
to  bring  into  court.  That  order  has  been  partially  complied 
with,  by  the  payment  into  court  on  the  6th  of  January,  last,  the 
sum  of  81807  85,  but  my  opinion  is,  that  it  must  be  complied 
with  in  full,  and  the  residue  of  the  money  brought  in. 

The  counsel  for  Putney  is  not  content  with  this,  but  says, 
that  the  trustee  must  also  bring  in  the  money  paid  to  the  coun- 
sel, and  that  he  the  trustee,  and  Gorman  and  Riddle,  must  like- 
wise bring  in  the  money  in  the  hands  of  the  two  last. 
23* 


270  HI^H  COURT  OF  CHANCERY. 

Some  stress  is  laid  upon  the  fact,  that  the  order  of  the  12th 
February,  1847,  was  passed  by  consent  of  parties ;  but  if  this 
be  so,  it  would  be  as  irregular  to  enlarge  it,  as  to  diminish  it. 
If  because  it  was  passed  by  consent,  Green  must  at  all  events 
comply  with  it,  it  would  seem  to  follow,  that  the  other  parties 
are  equally  concluded,  and  that  they  have  now  no  right  to  call 
upon  him  to  pay  in  a  larger  amount.  -••<*  - 

I  do  not,  however,  put  my  opinion  entirely  upon  the  ground 
of  its  having  been  passed  by  consent,  though  that  circumstance 
may  be  entitled  to  some  consideration.  It  stands  as  an  unre- 
scinded  order  of  the  court,  and  must  be  obeyed. 

The  court  does  not  see  at  this  time  any  sufficient  reason  for 
rescinding  it,  and  its  having  been  passed  with  the  assent  of  the 
parties,  certainly  would  prevent  me  from  interfering  with  it  up- 
on any  but  very  strong  grounds. 

The  rights  of  the  parties  to  the  money,  can  be  adjusted  as 
well  after  it  is  paid  in,  as  at  this  time. 

With  regard  to  the  sum  of  $4592  69,  advanced  by  Green, 
to  Gorman  and  Riddle,  on  the  2d  September,  1846,  it  may  not 
be  easy  at  this  time  to  determine,  whether  that  is  the  precise 
proportion  of  the  fund,  to  which  they  are  entitled.  It  cannot 
be  disputed,  I  presume,  that  they  were  entitled  to  three-fourths 
of  the  net  amount  of  the  money  received  from  the  government, 
applicable  to  the  claims  assigned  to  them  and  Putney,  and  per- 
haps, therefore,  in  any  view  of  the  case,  justice  may  be  done  to 
Putney,  out  of  the  fund  now  under  the  control  of  the  court, 
without  recalling  any  portion  of  that  which  has  been  paid  to 
Gorman  &  Riddle. 

It  is  insisted,  that  Putney's  share,  whatever  it  may  be,  must 
go  to  Green,  as  his  trustee  in  insolvency,  and  it  is  also  insisted 
that  he  contributed  no  part  of  the  money  with  which  the  claims 
of  the  creditors  were  brought  up. 

These  questions  will  be  for  the  present  left  open,  to  be  deci- 
ded when  the  Auditor  shall  have  made  his  report,  but  the  money 
so  paid,  I  think,  should  not,  under  the  circumstances,  be  ordered 
to  be  brought  in.  If  these  parties,  Gorman  and  Riddle,  have 
received  more  than  their  proportion,  they  at  the  proper  time  will 


DIXON  VS.  DIXON.  271 

be  ordered  to  refund  it,  and  Green  in  any  event  cannot  be  held 
liable  until  their  inability  is  ascertained.  It  is  not,  however,  to 
be  understood,  that,  in  the  opinion  of  the  court,  Green  would 
be  liable  in  the  latter  event,  that  question  being  reserved.  The 
court  will  pass  an  order,  referring  the  case  to  the  Auditor,  with 
such  directions,  as  can  at  this  time  be  given  ;  and  reserving 
such  questions,  as  cannot  now  be  safely  decided. 

[No  appeal  was  taken  from  this  order.] 


DIXON  ET  AL. 

vs.  £-     SEPTEMBER  TERM,  1848. 

DIXON  ET  AL. 

[CHANCERY  PRACTICE — LIMITATIONS.] 

WHERE  a  claim  has  been  submitted  to,  and  adjudicated  upon,  by  the  court,  and 
finally  rejected,  through  the  negligence  of  its  owner,  he  will  not  be  allowed 
to  re-open  the  judgment  of  the  court,  and  ask  for  and  obtain  a  re-hearing 
upon  additional  proof. 

But,  where  no  adjudication  has  been  had  upon  the  claim,  and  the  fund  for  distri- 
bution remains  in  court,  equity  requires  that  the  new  proof  should  be  consid- 
ered, and  if  found  sufficient  to  remove  the  objection  to  it,  the  claim  should 
be  allowed. 

When  funds  are  in  this  court  for  distribution  among  creditors  and  the  Auditor 
reports,  that  certain  claims  have  not  been  proved,  or  objections  for  want  of 
proof,  made  to  their  allowance  by  parties  interested,  the  case  is  again  refer- 
red to  the  Auditor,  with  directions  to  state  a  final  account,  from  which  all 
claims  not  then  sufficiently  proved,  are  to  be  excluded,  and  leave  is  given  to 
supply  the  proof  upon  such  terms,  as  to  notices,  as  may  be  deemed  reasona- 
ble. Upon  the  coming  in  of  the  report  of  the  Auditor,  made  pursuant  to  the 
order,  and  after  the  usual  time  given  for  filing  exceptions,  the  report  may 
be  submitted  for  ratification,  and  when  ratified,  all  parties  are  concluded, 
and  the  litigation  is  terminated. 

This  is  the  general  rule  ;  but,  there  may  be  cases  in  which  it  would  and  ought 
to  be  relaxed,  when  the  party  seeking  relief  can  show  himself  free  from  blame 
or  negligence. 

When  limitations  are  relied  upon,  the  defence  avails  only  in  favor  of  the  par- 
ties who  set  it  up. 

[This  was  a  creditor's  suit,  and  the  Auditor's  report,  with 
the  statement  of  claims,  having  been  set  down   for  hearing  on 


272  HIGH  COURT  OF  CHANCERY. 

exceptions,  the  demand  for  full  proof,  and  the  plea  of  limita- 
tions, an  order  was  passed  sustaining  the  plea  of  limitations  as 
to  some  claims,  and  settling  other  points,  and  referring  the 
case  again  to  the  Auditor,  to  state  an  account  from  which  were 
to  be  rejected  all  claims  not  then  (the  time  of  the  audit)  fully 
proved,  and  in  which  the  plea  of  limitations  was  to  be  allowed 
against  all  claims  liable  to  its  operation,  in  favor  of  the  parties 
pleading  or  relying  upon  the  statute.  From  the  account  stated 
in  conformity  with  this  order,  claims  Nos.  11,  62  and  63,  were 
rejected  for  want  of  full  proof,  which  had  been  demanded  of 
them,  and  certain  other  claims,  by  the  owner  of  claims  Nos. 
12  and  30. 

Before  the  confirmation  of  the  Auditor's  report,  the  owners 
of  said  claims  filed  their  petitions,  for  leave  to  furnish  full  proof, 
which  were  set  down  for  hearing  on  the  7th  October,  1848, 
with  liberty  to  take  the  necessary  testimony  by  that  day.  The 
proof  was  taken  and  filed,  and  the  question  argued,  was, 
whether  these  claims  should,  at  so  late  a  day,  be  admitted  to 
participate  in  the  distribution  of  the  funds,  which  were  insuffi- 
cient to  pay  all  the  claims  in  full :] 

THE  CHANCELLOR: 

The  claims  in  question,  have  never  yet  been  submitted  to, 
and  adjudicated  upon  by,  the  court.  If  they  had,  and  had  been 
finally  rejected,  through  the  negligence  of  their  owners,  the 
case  would  be  brought  within  the  decision  of  the  Court  of 
Appeals,  in  Kent  vs.  O'Hara,  7  Gill  fy  Johns.,  212,  and  the 
parties  must  take  the  consequences.  It  would  not  only  be  in- 
convenient, but  mischievous,  to  delay  and  embarrass  the  claims 
of  vigilant  creditors,  and  procrastinate  the  final  settlement  of 
estates,  if  parties  were  allowed,  after  full  notice  and  opportunity 
to  establish  their  claims,  to  re-open  the  judgment  of  the  court 
pronounced  against  them,  and  ask  for  and  obtain  a  re-hearing 
upon  additional  proof. 

But  when,  as  in  this  case,  no  adjudication  of  the  court 
stands  in  the  way,  and  the  fund  for  distribution  remains  un- 
disposed of,  it  seems  to  me,  that  equity  requires,  that  the  new 


DIXON  VS.  DIXON.  273 

proof  should  be  considered,  and  if  found  sufficient  to  remove 
the  objection,  the  parties  should  be  allowed  to  come  in  for  their 
fair  proportion  of  the  estate  of  their  debtor. 

The  general  rule  I  understand  to  be  this : 

When  funds  are  in  this  court  for  distribution  among  cred- 
itors, and  the  Auditor  reports,  that  certain  claims  have  not  been 
proved,  or  parties  interested  object  to  their  allowance  for  want 
of  proof,  the  case  is  referred  again  to  the  Auditor,  with  direc- 
tions to  state  a  final  account,  from  which  all  claims  not  then 
sufficiently  proved,  are  to  be  excluded,  and  leave  is  given  to 
supply  the  proof,  upon  such  terms,  as  to  notice,  as  may  be  deem-  , 
ed  reasonable.  Upon  the  coming  in  of  the  report  of  the  Au- 
ditor, made  pursuant  to  the  order,  and  after  the  usual  time 
given  for  filing  exceptions,  the  report  may  be  submitted  for 
ratification,  and  when  ratified,  all  parties  are  concluded,  and 
the  litigation  is  terminated. 

This,  I  say,  is  the  general  rule,  but  as  the  Court  of  Appeals 
say,  in  Kent  vs.  O'Hara,  there  may  be  cases  in  which  it  would 
and  ought  to  be  relaxed,  as  there  are  cases  in  which  new  trials 
are  granted  at  law,  upon  the  production  of  new  proof,  when 
the  party  applying  for  it  can  show  himself  free  from  blame  or 
negligence  in  not  bringing  it  forward  earlier. 

And  even  in  the  interval  between  the  final  report  of  the  Au- 
ditor, made  under  the  directions  of  the  court,  and  its  ratifica- 
tion, it  is  not  of  course  that  parties  are  entitled  to  offer  further 
evidence  in  support  of  their  claims,  when  they  have  already 
had  an  opportunity  to  establish  them,  and  have  neglected  to  do 
so.  But  the  circumstances  necessary  to  entitle  them  to  this  in- 
dulgence in  the  latter  case,  need  not  be  so  strong,  as  where 
the  report  of  the  Auditor  has  been  ratified  by  the  Chancellor, 
for  then  it  is  res  adjudicate,,  and  though  the  fund  may  yet  be 
under  the  control  of  the  court,  the  party  asking  for  are-hearing, 
must  come  armed  with  circumstances  sufficiently  strong  to  ac- 
quit him  of  the  blame  apparently  itnputable  to  him,  for  not 
offering  his  proof  at  an  earlier  stage  of  the  cause. 

But  in  this  case,  as  before  stated,  the  claims  now  under  con- 
sideration have  not  been  adjudicated  upon,  and,  I  am  of  opin- 
ion, the  facts  disclosed  in  the  petition  of  the  owners  of  claim 


274  HIGH  COURT  OF  CHANCERY. 

No.  11,  are  sufficient  to  entitle  them  to  the  benefit  of  the  proof 
since  taken  ;  and  as  the  case  must  go  again  to  the  Auditor,  it 
seems  but  equitable  that  the  proof  taken  in  support  of  claims, 
numbered  62  and  63,  should  also  be  let  in,  as  well  as  the  proof 
in  support  of  any  other  claim,  which  may  have  been  rejected 
under  similar  circumstances.  The  defence  of  limitations  to 
avail,  however,  as  before  ordered,  in  favor  of  the  parties  who 
have  relied  upon  the  statute. 

[No  appeal  from  this  decree.] 

[Note  by  the  Reporter. — The  following  is  the  form  of  the 
order  passed  upon  the  filing  of  the  Auditor's  first  report  in  a 
creditor's  suit,  where  objections  have  been  taken  by  the  parties 
or  any  of  the  creditors.  When  limitations  are  relied  upon,  the 
objection  avails  only  in  favor  of  the  party,  setting  it  up.  When 
full  proof  is  demanded,  the  objection  is  understood  to  go  to  the 
whole  claim,  and  must  be  met  by  the  same  proof  that  would  be 
required  if  the  claimant  or  party  had  filed  an  original  bill ; 
though  it  will  be  seen,  that  the  order  provides  a  summary  way 
of  taking  it. 

"  Ordered,  That  the  exceptions  to  the  Auditor's  report  filed 
in  this  cause,  stand  for  hearing  on  the  next ;  and,  that 

any  creditor  of  the  deceased,  whose  claim  is  stated,  or  noticed 
in  the  Auditor's  report,  and,  also,  any  of  the  parties  to  this  suit, 
be,  and  they  are  hereby,  severally  authorized  to  take  the  de- 
positions of  any  witnesses  in  relation  to  such  claims,  before  any 
justice  of  the  peace  ;  provided,  that  three  days  notice  be  given, 
as  usual,  by  the  creditor  in  whose  behalf  the  testimony  is  pro- 
posed to  be  taken,  to  some  two  or  three  other  creditors,  or  one 
or  more  of  the  parties  or  their  solicitor ;  or,  by  one  or  more  of 
the  parties  in  whose  behalf  the  testimony  is  proposed  to  be 
taken,  to  some  two  or  more  of  the  creditors,  or  to  their  solicitor. 
But  the  creditor  against  whose  claim  the  testimony,  when 
taken,  is  intended  particularly  to  operate,  must  himself,  or  his 
solicitor,  be  notified.  And,  depositions  so  taken,  subject  to 
all  legal  exceptions,  may  be  read  in  evidence  in  the  cause ; 
provided,  they  are  filed  in  the  chancery  office,  on  or  before  the 
next.] 


POTTER  VS.  KERR.  275 


MOSES  POTTER        ^ 

vs.  C     SEPTEMBER  TERM,  1848. 

EDWARD  M.  KERR.    3 

[INSOLVENT  LAWS — FOREIGN  CREDITORS.] 

THE  rights  of  foreign  creditors  are  not  affected  by  the  discharge  of  an  insolv- 
ent, under  the  laws  of  Maryland. 

State  insolvent  laws,  although  constitutional  in  their  action  upon  the  rights  of 
their  own  citizens,  are  unconstitutional  when  they  affect  the  rights  of  citizens 
of  other  states. 

A  discharge  under  the  insolvent  laws  of  Maryland  cannot  affect  the  right  of 
foreign  creditors  to  obtain  against  the  insolvent,  in  the  Maryland  courts,  an 
absolute  and  unqualified  judgment,  and  to  place  their  execution  upon  any 
property  of  the  insolvent  debtor  to  be  found  undistributed  in  the  hands  of  the 
trustee. 

[The  bill  was  filed  in  this  cause  on  the  8th  of  September, 
1846.  It  appears  that  about  the  20th  of  January,  1845,  Moses 
Potter,  the  complainant,  and  Edward  M.  Kerr,  the  defendant, 
commenced  business  in  Baltimore  ;  and  that  the  relations  be- 
tween them  was  arranged  and  established  by  an  agreement, 
which  amongst  other  things,  stated  that  Kerr  had  agreed  to 
employ  Potter,  "as  a  salesman  and  general  clerk,  in  his  store, 
No.  —  Baltimore  street,  in  the  city  of  Baltimore,  and  to  allow 
him  for  the  faithful  performance  of  his  services  in  that  capacity, 
one-quarter  of  the  net  profits  that  may  arise  from  the  business, 
after  deducting  all  expenses,  and  the  interest  on  amount  of  the 
capital  stock  put  in  said  business,  at  the  rate  of  six  per  cent,  per 
annum,  and  to  pay  the  said  Moses  Potter  from  the  concern,  for 
his  support,  the  sum  of  eighty-three  dollars  and  thirty-three 
cents,  per  month,  which  said  monthly  payments  are  to  be  ad- 
vanced out  of  the  net  profits  coming  to  the  said  Moses  Potter, 
and  to  be  deducted  from  his  one-quarter  share  of  the  net  profits 
at  the  end  of  each  year."  The  agreement  contained  also  the 
following  clause  :  "And  it  is  hereby  declared  to  be  the  mean- 
ing of  the  articles  of  agreement  aforesaid,  that  thereby  the  said 
Moses  Potter  is  not  made  a  partner  in  trade  of  the  said  E.  M. 
Kerr,  but  that  the  allowance  of  one-fourth  of  the  net  profits. 


276  HIGH.  COURT  OF   CHANCERY. 

after  deducting  the  expenses  of  the  business,"  &c.,  "is  as  com- 
pensation for  the  services  of  the  said  Moses  Potter  in  lieu  of 
clerk  hire,  and,  further,  that  the  said  E.  M.  Kerr,  is  to  sign  all 
bonds,  notes,  or  other  obligations  for  the  payment  of  money,  or 
the  performance  of  any  contracts  or  any  agreements  necessary 
to  be  entered  into  for  the  conducting  of  the  said  business,"  &c. 
The  bill  stated  that  Potter  was  held  out  to  the  world  as  a  part- 
ner, and  that  the  business  was  conducted  in  the  name  of  E.  M. 
Kerr  &  Co.,  and  that  although  he  had  not  been  treated  as  such 
in  the  distribution  of  the  funds,  his  being  so  represented  to  the 
world,  made  him  liable  for  the  debts  of  the  firm  ;  which  were 
very  considerable,  as  were  also  its  resources,  in  debts  due,  and 
merchandise  on  hand  ;  that  Kerr,  in  his  individual  capacity, 
had  incurred  heavy  responsibilities,  and  was  applying  the  funds 
of  the  concern  to  meet  them  ;  that  attachments  had  been  issued 
against  the  effects  of  the  firm  by  his  individual  creditors ;  and 
that  he  had  refused  to  account  with  him  or  to  pay  him  his  share  of 
the  profits.  The  bill  prayed  for  the  appointment  of  a  receiver ; 
the  application  of  the  funds,  firstly  to  the  payment  of  the  joint 
debts  of  the  firm ;  for  a  dissolution  of  the  partnership  ;  an  in- 
junction to  restrain  the  defendant  from  meddling  with  the  funds, 
or  interfering  with  the  receiver ;  and  an  account.  The  answer 
denied  that  the  complainant  had  ever  been  treated  by  the  de- 
fendant as  a  partner,  either  publicly  or  privately  ;  and  stated 
that  the  name  of  E.  M.  Kerr  &  Co.,  under  which  he  had  con- 
tinued to  trade,  was  the  name  of  an  old  firm,  of  which  he  had 
been  the  active  member,  and  was  used  by  him  as  being  well 
known  to  the  world  ;  that  his  acts  had  not  been  such  as  to  make 
the  complainant  liable  for  the  debts  of  the  concern ;  and  that 
the  complainant  had  appropriated  to  his  own  use,  moneys  re- 
ceived by  him  on  defendant's  account,  far  exceeding  what  he 
was  entitled  to  under  the  agreement.  An  injunction  was  grant- 
ed by  the  late  Chancellor  upon  the  filing  of  the  bill,  and  the  de- 
fendant on  putting  in  his  answer,  moved  for  its  dissolution, 
which  motion  was  ordered  to  stand  for  hearing  at  December 
term,  1846.  The  case  was  argued  before  the  present  Chan- 
cellor, who  delivered  his  opinion  on  the  llth  January,  1847, 


POTTER  VS.  KERR.  277 

in  favor  of  a  continuance  of  the  injunction.  A  number  of  de- 
positions, and  written  evidence,  to  be  used  at  the  hearing,  had 
been  filed  under  an  agreement ;  the  effect  of  which,  the  Chan- 
cellor said,  was  to  show  that  "the  complainant  occupied  a  po- 
sition in  the  business,  with  the  knowledge  and  consent  of  both 
parties,  which  made  him,  as  to  third  persons,  a  partner  in  the 
concern."  And  also  that  the  concern  was  in  very  embarrassed 
circumstances,  if  not  actually  insolvent.  The  question  of  part- 
nership was  minutely  and  elaborately  considered  by  the  Chan- 
cellor, who  decided  that  a  partnership  did  exist  as  to  third 
persons,  though  not  as  between  the  parties  themselves.  The 
case  was  again  argued  at  the  same  term,  on  the  appointment 
of  a  receiver,  and  in  his  opinion,  on  that  occasion,  he  entered 
into  a  further  consideration  of  the  same  question,  deciding  as 
before,  the  main  ground  relied  on,  being  the  fact  of  the  com- 
plainant having  been  allowed  for  his  services,  a  share  of  the 
profits.  By  the  order  filed  with  this  opinion,  on  the  1st  of 
February,  1847,  George  M.  Gill,  was  appointed  receiver,  who 
duly  qualified  as  such.  From  this  order,  and  from  those  grant- 
ing and  continuing  the  injunction,  the  defendant  appealed.  On 
the  27th  of  April,  1847,  the  receiver  having  reported  sales  of  the 
property  to  a  large  amount,  an  order  was  passed  directing  him 
to  notify  creditors  of  the  firm  to  file  their  claims,  and  the  case 
was  afterwards  referred  to  the  Auditor  to  make  a  statement  of 
the  claims  filed,  several  of  which  were  judgments  recovered 
against  E.  M.  Kerr,  by  citizens  of  the  state  of  New  York  ;  and 
an  account.  The  Auditor  in  his  report,  filed  12th  of  October, 
1847,  stated  that,  with  a  few  exceptions,  all  the  claims  filed, 
appeared  to  have  originated  since  the  formation  of  the  partner- 
ship ;  that  it  would  appear  from  these,  that  the  defendant's 
course  was  to  deal  in  his  own  name,  and  that  there  was  nothing 
to  show  that  any  one  of  them  was  entitled  to  preference  over 
the  rest.  His  account  was  stated  accordingly,  but  was  except- 
ed  to,  and  overruled,  as  to  this  mode  of  treating  the  claims, 
by  the  Chancellor.  The  Court  of  Appeals,  at  June  term,  1848, 
reversed  the  orders  appealed  from,  and  remanded  the  cause  to 
this  court,  "for  such  further  proceedings,  as  the  nature  of  the 
VOL.  i — 24 


278  HIGH  COURT  OF  CHANCERY. 

case,  and  the  rights  and  equities  of  the  parties  may  render  ne- 
cessary ;"  but  no  opinion  was  delivered,  or  statement  made  of 
the  grounds  upon  which  this  decision  was  based. 

After  the  case  was  decided  in  the  Court  of  Appeals,  John 
Glenn,  as  permanent  trustee  of  Kerr,  who  had  petitioned  for 
the  benefit  of  the  insolvent  laws,  filed  his  petition  in  this  court, 
to  have  the  money,  property,  books  and  effects  of  the  defend- 
ant, in  the  hands  of  the  receiver,  delivered  over  to  him.  The 
receiver  was  directed  to  show  cause  against  this  application, 
and  an  answer  was  filed  by  him  for  that  purpose.  By  this  it 
was  represented  that  sundry  attachments  had  been  laid  in  his 
hands,  issued  upon  judgments,  some  of  which  were  rendered 
against  Kerr,  individually,  and  some  against  Kerr  and  Potter, 
jointly ;  that  one  of  them  was  issued  prior  to  the  decree  of 
the  Court  of  Appeals  ;  the  residue  subsequently  thereto,  and 
that  all  of  them  were  still  depending;  the  former  in  the  Circuit 
Court  of  the  United  States  for  the  district  of  Maryland ;  and 
the  others  in  Baltimore  County  Court ;  and  submitted  whether 
the  receiver  under  the  circumstances,  could  with  safety  to  him- 
self deliver  up  the  property.] 

THE  CHANCELLOR  : 

It  is  insisted  on  the  part  of  the  insolvent  trustee  of  Kerr,  that 
the  orders  granting  and  continuing  the  injunction,  and  appoint- 
ing a  receiver,  being  reversed,  Kerr,  if  he  had  not  petitioned, 
would  be  remitted  to  all  his  rights,  and  would  be  entitled  to  a 
restitution  of  the  property ;  and  that  the  trustee  being  clothed 
with  all  his  rights,  the  possession  must  be  restored  to  him. 

It  is  to  be  presumed,  however,  if  the  Court  of  Appeals  had 
considered  it  proper  to  dispose  of  the  question  of  title  in  this 
summary  way  ;  that  is,  if  they  had  thought,  that  in  no  possible 
phase  which  the  cause  might  assume,  the  creditors  of  the  mer- 
cantile house  of  E.  M.  Kerr  and  Company,  or  the  joint  credi 
tor  of  Kerr  and  Potter,  could  intervene  in  this  cause  for  the  pro- 
tection of  their  rights,  and  ask  the  court  to  apply  the  assets  to 
their  payment  in  preference  to  the  private  creditors  of  Kerr, 
they  would  either  have  dismissed  the  bill,  or  remanded  the 


POTTER  VS.  KERR.  279 

cause  to  this  court  with  directions  to  dismiss  it,  after  recalling 
the  funds  from  the  receiver.  But  this  was  not  done,  the  direc- 
tion being  to  proceed,  as  the  nature  of  the  cause,  and  the  rights 
and  equities  of  the  parties,  may  require. 

The  parties  to  the  record  before  the  Court  of  Appeals,  were 
Moses  Potter  vs.  Edward  M.  Kerr,  and  it  may  be  that  the 
court  decided  the  cause  upon  the  ground,  that  upon  that  record 
they  could  only  regard  the  rights  of  those  parties  inter  se  ;  and 
there  being  as  between  them  no  partnership,  there  was  no  foun- 
dation for  ihe  orders  appealed  from. 

It  must  have  been  manifest  to  the  Court  of  Appeals,  how- 
ever, that  there  were  creditors  of  the  house  to  a  large  amount, 
for  that  appeared  by  the  pleadings ;  and  it  must  have  been 
equally  obvious  to  that  tribunal,  that  Kerr  was  insolvent,  and 
that  claiming  the  sole  ownership  of  the  property,  he  insisted 
upon  his  right  to  apply  the  effects  to  the  payment  of  debts  due 
from  him,  not  connected  with  or  growing  out  of  the  business 
of  the  house ;  and  this  may  have  been  the  reason  why  the  bill 
was  not  dismissed,  or  the  record  remanded  to  this  court,  with 
directions  to  dismiss  it,  after  the  property  should  be  taken  out 
of  the  hands  of  the  receiver. 

The  Court  of  Appeals  may  have  considered,  that  the  credi- 
tors not  being  parties  to  the  cause  before  that  court,  the  orders 
passed  by  this  court,  which  were  designed  for  their  protection, 
could  not  be  supported  ;  but  that  seeing  there  were  creditors  to 
a  large  amount,  who  might  become  parties  at  a  subsequent 
stage  of  the  cause,  and  whose  rights  would  be  jeoparded  by 
restoring  the  property  to  Kerr,  it  was  deemed  right,  instead  of 
pronouncing  a  final  judgment,  to  send  the  case  back  to  this 
court  for  such  further  proceedings  as  the  interests  of  the  credi- 
tors might  require,  and  to  give  them  an  opportunity  of  coming 
in  and  being  heard. 

This  view  of  the  subject  borrows  strength  from  the  disposi- 
tion which  the  appellate  court  made  of  the  subject  of  costs. 
They  award  the  appellant  the  costs  incurred  by  him  upon  the 
appeal,  and  in  the  Court  of  Appeals ;  but  leave  undecided  the 
question  of  costs  in  this  court,  which  it  is  fair  to  infer^  would 


280  HIGH  COURT  OF  CHANCERY. 

not  have  been  done  if  they  had  meant  to  decide  the  whole  con- 
troversy, and  to  restore  to  the  appellant  without  restriction  and 
at  once,  the  subject  in  dispute. 

Supposing  it  possible,  nay,  probable,  that  if  the  creditors  of 
E.  M.  Kerr  &  Co.,  had  been  parties  to  the  record  before  the 
Court  of  Appeals,  a  different  decision  would  have  been  made, 
it  follows,  that  as  these  creditors  are  now  here  upon  the  invita- 
tion of  the  court  itself,  it  would  be  proper,  at  least  for  the  pre- 
sent, to  abstain  from  passing  any  order  which  may  seriously 
endanger  their  interests.  In  a  very  short  time,  it  is  believed, 
the  Court  of  Appeals  will  deliver  their  opinion,  when  the  doubts 
which  now  surround  this  subject  will  be  removed. 

The  order  which  the  court  will  pass,  whilst  it  will  secure  the 
property  for  those  who  may  be  entitled  to  it,  will  expose  no 
parties  to  danger. 

The  propriety  of  the  order  which  the  Chancellor,  under  the 
circumstances  thinks  it  right  to  pass,  would  seem  to  be  vindi- 
cated by  another  consideration. 

Attachments,  as  we  have  seen,  have  been  laid  in  the  hands 
of  the  receiver,  one  of  them  prior  to,  and  the  other  since,  his 
authority  was  revoked,  and  it  would,  perhaps,  be  presumptuous 
in  this  court  to  pronounce  absolutely  upon  the  validity  of  these 
proceedings.  Should  they  be  sustained  by  the  courts  in  which 
they  are  pending,  and  this  court,  by  its  order  should  take  the 
property  from  the  receiver,  and  hand  it  over  to  the  trustee  of 
Kerr,  the  former  might  be  involved  in  heavy  loss.  It  is  surely 
the  duty  of  this  court  to  protect  its  officer  from  loss  when  acting 
in  the  discharge  of  his  duty,  and  especially  when  it  can  be  done 
without  exposing  the  rights  or  interests  of  others  to  the  slight- 
est risk. 

It  has  been  urged  in  the  argument,  that  the  right  of  the  pe- 
titioner, as  the  permanent  trustee  in  insolvency  of  Kerr,  to  the 
possession  and  administration  of  this  fund,  is  superior  to  any 
which  he  himself  could  have  claimed,  if  he  had  not  applied  for 
the  benefit  of  the  insolvent  laws  ;  and  the  case  of  Alexander  vs. 
Ghiselin  is  relied  upon  in  support  of  this  position. 

That  case  might  have  a  controlling  effect,  if  it  did  not  appear, 


POTTER  VS.  KERR.  281 

as  it  does  in  this  case,  that  a  number  of  these  judgment  credi- 
tors are  non-residents  of  the  state. 

The  rights  of  these  creditors  are,  unquestionably,  not  affected 
by  the  discharge  of  Kerr  under  the  insolvent  laws  of  Maryland. 
Independently  of  the  case  of  Cook  vs.  Moffatt  et  a/.,  5  Howard 
Rep.,  295,  the  last  decision,  it  is  believed,  of  the  Supreme  Court 
upon  the  subject,  the  Court  of  Appeals  of  this  state,  in  the  case 
of  Frey  vs.  Kirk,  4  Gill  fy  Johns.,  509,  have  put  the  question 
at  rest.  In  remarking  upon  the  case  of  Ogden  vs.  Saunders, 
12  Wheaton,  213,  they  say,  that  the  ultimate  opinion  of  Mr. 
Justice  Johnson,  which  established  the  law  upon  the  subject, 
settled  among  others,  the  principle,  "that  such  laws,  (speaking 
of  the  state  insolvent  laws,)  although  constitutional  in  their 
action  upon  the  rights  of  their  own  citizens,  are  unconstitu- 
tional, when  they  affect  the  rights  of  citizens  of  other  states." 

It  is  said,  however,  that  though  the  state  insolvent  laws  are  un- 
constitutional, so  far  as  they  operate  upon  the  rights  of  the  citi- 
zens of  other  states,  that  yet  the  decisions  of  the  Supreme  Court 
of  the  United  States,  concede  to  the  states,  the  power  to  pass 
laws,  affecting  and  regulating  the  remedies  which  may  be  re- 
sorted to,  for  the  enforcement  of  those  rights.  And  it  is  urged, 
that  our  state  insolvent  system,  which,  as  expounded  by  the 
Court  of  Appeals  in  the  case  of  Alexander  and  Ghiselin,  places 
the  whole  property  of  the  insolvent  in  the  hands  of  the  trustee, 
to  be  administered  by  him,  is  a  mere  regulation  of  the  remedy, 
and  so  far  constitutional  and  binding  upon  the  citizens  of  other 
states.  And  that,  consequently,  the  property  must  be  delivered 
to  the  trustee,  who  will  distribute  it  among  the  creditors  ac- 
cording to  their  respective  rights. 

This  view  of  the  subject  is  in  direct  conflict  with  what  was 
said  by  the  learned  judge,  who  delivered  the  opinion  of  the 
Court  of  Appeals  in  the  case  of  Larribee  vs.  Talbot,  decided  at 
December  term,  1847,  which  was,  that  "it  was  now  settled  by 
the  adjudications  of  the  Supreme  Court,  that  a  discharge  ob- 
tained under  the  insolvent  laws  of  Maryland,  could  not  affect 
the  right  of  foreign  creditors  to  obtain  against  the  insolvent  in 
the  Maryland  courts  an  absolute  and  unqualified  judgment,  and 
24* 


282  HIGH  COURT  OF  CHANCERY. 

to  place   their   execution  upon   any  property  of  the  insolvent 
debtor  to  be  found  undistributed  in  the  hands  of  the  trustee." 

Whether  this  position  is  to  be  regarded  as  an  obiter  dictum 
or  not,  it  is  of  course  entitled  to  great  consideration  ;  and  see- 
ing that  the  case  was  decided  at  the  same  term  as  that  of  Alex- 
ander and  Ghiselin,  with  which  it  is  supposed  to  be  inconsist- 
ent, we  must  presume  that  the  enlightened  tribunal  by  which 
both  causes  were  decided,  were  clearly  of  opinion,  that  nothing 
decided,  or  even  said  by  way  of  argument,  in  the  one,  was  in 
conflict  with  the  other.- 

The  conflict,  certainly,  is  not  apparent  to  me,  nor  do  I  see 
the  dangers  which  it  is  said  the  domestic  creditors  will  be  ex- 
posed to,  if  property  in  the  hands  of  the  trustee,  upon  which 
they  have  acquired  liens,  prior  to  its  transfer  to  him  is  after- 
wards levied  upon  in  his  hands  at  suit  of  the  foreign  creditor  of 
the  insolvent.  Because,  although  the  foreign  creditor  may  lay 
his  execution  on  property  in  the  hands  of  the  trustee,  such  levy 
must  be  subject  to  the  prior  liens  of  the  domestic  creditor,  and 
any  sale  which  may  be  made  under  such  execution  would  pass 
the  property  subject  to  the  same  lien,  precisely  as  if  the  party 
liad  not  petitioned,  and  the  levy  and  sale  had  been  made  whilst 
rihe  property  remained  in  the  hands  of  the  debtor  himself. 

My  opinion,  therefore,  is,  that  as  this  case  now  stands,  I 
cannot  grant  the  application  of  the  trustee  of  Kerr,  and  must 
dismiss  his  petition,  but  inasmuch  as  the  anticipated  opinion  of 
the  Court  of  Appeals,  may  present  his  right  in  a  different  as- 
pect, it  will  be  dismissed  without  prejudice  to  his  rights  here- 
after to  renew  the  application  as  he  may  be  advised.  The 
money  and  funds,  however,  now  in  the  hands  of  the  receiver, 
will  be  ordered  to  be  brought  into  court  to  be  deposited  to  the 
credit  of  this  cause. 


HINTZE  VS.  STINGEL.  283 


FREDERICK  E.  B.  HINTZE 

vs.  ^»     SEPTEMBER  TERM,  1848. 

CHRISTOPHER  STINGEL  AND  WIFE.. 

[TRUSTEE'S  SALE — INADEQUACY  OF  PRICE.] 

INADEQUACY  of  price  is  not  sufficient  ground  for  setting  aside  a  sale  otherwise 
unexceptionable,  unless  the  sum  reported  is  so  grossly  inadequate  as  to  indi- 
cate a  want  of  reasonable  judgment  and  discretion  in  the  trustee. 

But,  where  any  other  just  cause  appears,  to  doubt  the  propriety  of  the  sale,  it 
is  a  consideration  very  proper  to  be  viewed  in  connection  with  it,  that  the 
sale  was  made  at  a  reduced  price. 

It  appearing,  that  the  defendant,  who  was  a  German,  and  imperfectly  acquaint- 
ed with  our  language,  called  upon  the  trustee  a  few  days  before  the  sale,  for 
information  as  to  the  day  of  sale  ;  and,  that  either  the  trustee  incautiously 
misinformed  him  on  the  subject,  or  that  he  misunderstood  the  trustee,  owing 
to  his  imperfect  knowledge  of  the  English  language  ;  and,  that  a  bidder  who 
would  have  given  nearly  twice  the  amount  for  'which  the  property  was  struck 
off,  was  kept  from  attending  the  sale  by  the  information  which  he  received 
from  the  defendant ;  upon  these  circumstances  and  the  concurrence  of  the 
plaintiff  in  the  application,  the  sale  was  set  aside. 


[On  the  2d  of  May,  1848,  certain  real  estate  in  the  city  of 
Baltimore,  belonging  to  the  defendant,  was  sold  under  a  chan- 
cery decree  to  satisfy  a  mortgage  debt  of  the  complainant. 
The  defendant,  who  was  a  German,  and  imperfectly  acquainted 
with  the  English  language,  applied  to  the  trustee,  shortly  be- 
fore the  sale,  to  know  on  what  day  the  property  was  to  be  sold. 
According  to  his  understanding  of  the  trustee's  reply,  the  sale 
was  to  take  place  on  the  5th  of  May ;  and,  under  that  impression, 
he  commenced  arrangements  for  obtaining  money  to  pay  the 
amount  due  on  the  mortgage,  or  at  any  rate,  to  procure  the  at- 
tendance of  purchasers  at  the  sale. 

The  sale  was  made,  as  above  stated,  on  the  2d  of  May,  1848, 
without  the  defendant's  knowledge,  who  had  induced  persons 
to  attend  on  the  5th  of  the  month,  willing  to  give  a  much  high- 
er price  for  the  property  than  was  given  by  the  purchaser,  Hud- 
son. The  trustee,  in  his  report,  mentioned  most  of  the  above 
circumstances,  and  also  stated,  that  the  property  sold  much  be- 
low its  value,  and  the  purchaser  had  paid  him  $>(iOO  of  the  pur- 


284  HIGH  COURT  OP  CHANCERY. 

chase  money,  which  he  was  ready  to  refund  if  a  re-sale  was 
ordered.  A  petition  was  filed  by  the  defendant  to  set  aside  the 
sale,  and  the  complainant  also  expressed  his  willingness  that  it 
should  be  vacated.  This,  however,  was  opposed  by  the  pur- 
chaser who  alleged  the  fairness  of  the  proceedings.  Some  de- 
positions were  taken  in  relation  to  the  value  of  the  property,  as 
well  as  other  matters  affecting  the  merits  of  the  question,  by 
which  it  appeared  that  its  value  was  far  beyond  what  it  was  sold 
for  ;  and  the  case  being  argued  at  this  term,  the  Chancellor, 
after  stating  the  case,  said  :] 

• 
THE  CHANCELLOR : 

The  Court  of  Appeals  of  this  state  said,  in  the  case  of  Glenn, 
Trustee  of  Dorsey  vs.  Clapp,  11  G.  fy  «/.,  1,  lhat  the  court 
would  not  set  aside  a  sale,  in  all  other  respects  unexceptiona- 
ble for  inadequacy  of  price,  unless  the  sum  reported  by  the  trus- 
tee is  so  grossly  inadequate  as  to  indicate  a  want  of  reasonable 
judgment  and  discretion  in  the  trustee  :  but,  where  any  other 
just  cause  appears,  to  doubt  the  propriety  of  the  sale,  it  is  a 
consideration  very  proper  to  be  viewed  in  connection  with  it, 
that  the  sale  was  made  at  a  reduced  price. 

The  Court  of  Appeals  have  not  said  what  that  degree  of  in- 
adequacy is,  which,  standing  alone,  would  vitiate  the  sale  ; 
or,  in  other  words,  would  demonstrate  the  want  of  reasonable 
judgment  and  discretion  in  the  trustee  ;  nor,  is  it  necessary 
that  I  should,  in  this  case,  undertake  to  lay  down  a  rule  upon 
the  subject.  It  is  enough,  that  inadequacy  of  price  is  a  con- 
sideration which  should  not  be  without  its  influence  upon  the 
mind  of  the  court,  when  there  are  other  circumstances  well  cal- 
culated to  create  a  doubt  of  the  propriety  of  the  sale.  It  is 
true,  as  was  strongly  pressed  by  the  solicitor  of  the  purchaser 
in  this  case,  that  sales  made  under  judicial  authority,  should 
not  be  lightly  interfered  with,  and  that  reasons,  founded  upon 
public  policy,  require  that  every  fair  legal  intendment  should  be 
made  in  their  support.  But  still,  the  court,  which  is  the  vendor, 
and  undertakes  to  sell  the  title  of  the  parties  to  the  suit,  is  sure- 
ly bound  to  protect  them  from  the  consequences  of  surprise, 


HINTZE  VS.  STINGEL.  285 

misapprehension  or  mistake;  and,  especially,  is  it  under  an  ob- 
ligation to  do  so,  when  it  has  just  grounds  for  supposing,  that 
the  acts  or  declarations  of  the  officer  employed  by  it  to  make 
the  sale,  has  been  the  cause  of  such  surprise,  misapprehension 
or  mistake. 

Now,  in  this  case,  in  view  of  the  facts  stated  by  the  trustee 
in  his  report,  and  of  the  grounds  set  forth  in  the  petition  of  the 
defendant,  sustained  as  that  is  by  the  evidence  of  disinterested 
parties,  there  is,  I  think,  scarcely  a  doubt,  that  the  trustee  did, 
from  inadvertence,  misinform  the  defendant  in  regard  to  the  day 
of  sale  ;  or,  at  all  events,  from  his  (the  defendant's)  imperfect 
knowledge  of  our  language,  he  misunderstood  the  trustee  upon 
the  subject. 

It  would  seem  impossible  to  doubt  this  ;  and  the  deposition 
of  James  Slater,  a  witness  whose  veracity  is  not  questioned, 
and  of  whose  ability  to  pay  no  doubt  has  been  expressed,  says, 
but  for  the  information  which  he  received  from  the  defendant, 
as  to  the  time  of  sale,  he  would  have  attended,  and  if  present, 
he  would  have  given  two  thousand  dollars  for  the  property.  It 
is  true,  there  is  some  discrepancy  between  the  evidence  of  this 
witness,  as  to  the  precise  day  on  which  he  says  the  defendant  told 
him  the  sale  was  to  take  place,  and  the  statement  of  the  defendant, 
in  his  petition.  But,  it  is  clear,  beyond  dispute,  that  the 
defendant  was  under  a  misapprehension  upon  the  subject; 
and  the  evidence  of  Slater  shows,  that  this  misapprehen- 
sion caused  the  defendant  to  make  to  the  witness  an  erro- 
neous statement  as  to  the  day  of  sale,  which  resulted  in  a  loss 
of  nearly  one-half  the  value  of  the  property. 

It  appears  to  me,  that  the  following  facts  are  indisputably 
established  in  this  case  : 

1st.  That  the  defendant  did  call  on  the  trustee  a  few  days 
before  that  on  which  the  sale  was  made,  for  information 
as  to  the  day  of  sale. 

2d.  That  the  trustee  either  incautiously  misinformed  him  upon 
the  subject,  or,  that  the  defendant  misunderstood  the  trustee, 
owing  to  his  (the  defendant's)  imperfect  knowledege  of  our  lan- 
guage ;  and, 


286  HIGH    COURT  OF    CHANCERY. 

3d.  That  a  bidder  who  would  have  given  nearly  twice  the 
amount  for  which  the  property  was  struck  off,  was  kept  from 
attending  the  sale  by  the  information  which  he  received  from 
the  defendant. 

These  circumstances,  I  am  persuaded,  must  cause  a  doubt, 
and  a  strong  doubt,  of  the  propriety  of  the  sale,  and  when 
viewed  in  connection  with  the  unquestionable  fact,  that  the 
property  sold  much  below  its  value.,  seem  to  me  to  furnish  suf- 
ficient grounds  to  vacate  it. 

This  case,  in  some  of  its  features,  and,  especially,  in  that 
particular  one  upon  which  my  judgment  is  formed,  is  striking- 
ly like  the  case  of  Williamson  vs.  Dale,  3  Johns.  Ch.  Rep.,  290, 
in  which  a  sale  made  by  a  master  in  New  York  was  set  aside, 
upon  the  ground  of  surprise  ;  the  surprise  consisting  in  a  mis- 
apprehension on  the  part  of  the  defendant,  as  to  the  day  of  sale, 
founded  upon  conversations  had  by  their  agent  with  the  plain- 
tiff and  his  solicitor — there  was,  in  that  case,  as  stated  by  the 
Chancellor,  no  imputation  of  any  unfair  intention  in  the  plain- 
tiff or  the  solicitor,  or  of  any  unfair  conduct  at  the  sale  ;  but 
still,  upon  the  ground,  that  the  defendants  were  innocently  mis- 
led, the  sale  was  vacated  ;  though  the  purchaser  was  conceded 
to  stand  fair  before  the  court,  upon  which  he  was  allowed  his 
costs,  which  I  shall  order  to  be  paid  him  in  this  case. 

There  was  inadequacy  of  price  shown  in  the  case  before 
Chancellor  Kent,  but  that,  he  said,  would  not  be  sufficient,  un- 
attended with  other  circumstances.  He  put  it  upon  the  ground 
of  surprise,  though  he  remarked,  the  surprise  was  not  of  the 
most  stringent  kind ;  and  the  case  for  relief,  on  that  ground, 
was  pushed  to  the  utmost  verge  of  an  admissible  interference. 

The  case  now  under  consideration  is,  I  think,  stronger  than 
that  of  Williamson  and  Dale;  and,  therefore,  I  do  not  think  I  am 
treading  on  delicate  or  dangerous  ground,  in  vacating  this  sale 
and  ordering  the  property  to  be  put  again  in  the  market.  Some 
of  the  objections,  founded  on  considerations  of  public  policy, 
are  certainly  obviated  by  the  concurrence  of  the  plaintiff,  in  the 
application  for  the  interposition  of  the  court. 

An  order  will  be  passed,  setting  aside  the  sale,  directing  the 


MITCHELL  VS.  HOLMES.  287 

trustee  to  return  to  the  purchaser  the  money  which  he  has  paid, 
and  for  the  payment  of  his  costs  by  the  defendant,  or'  (frit  of 
the  proceeds  of  any  future  sale  which  may  be  made  by  the 
trustee. 

[No  appeal  was  taken  from  this  order.] 


j 


WALTER  MITCHELL 

vs.  £»     SEPTEMBER  TERM,  1848. 

WILLIAM  HOLMES  ET  AL. 


[APPLICATION    OF   INCOME    OF   TRUST   ESTATE — TRUSTEE'S    COMMISSIONS — 

DEVISE.] 

UPON  a  devise  of  real  and  personal  property  to  a  trustee,  in  trust,  to  apply  the 
income  arising  therefrom  for  the  mutual  benefit  of  the  uncle  and  aunt  of  the 
testator  for  life,  and  after  the  death  of  the  uncle  to  the  mutual  benefit  of  the 
aunt  and  her  children.  It  was  HELD — 

That,  during  the  life  of  the  uncle  and  aunt,  the  income  of  the  trust  estate  should 
•be  equally  divided  between  them  ;  and,  that  the  title  of  the  children  of  the 
aunt  to  participate  in  the  income,  is  to  be  postponed  until  after  the  death  of 
the  uncle. 

The  testator  having  said  that  the  trustee,  whom  he  also  appointed  his  executor, 
shall  have  "ten  per  cent,  on  the  whole  amount  of  property  which  may  come 
into  his  hands  as  trustee."  It  was  HELD — 

That  he  was  entitled  to  this  percentage  on  the  whole  amount  of  property,  and 
not  on  the  income  only,  irrespective  of  the  sum  which  may  have  been  allow- 
ed him  by  the  Orphans  Court  as  executor  ;  and,  in  this  respect,  the  two  of- 
fices are  to  be  regarded  as  distinct,  as  if  filled  by  two  different  persons. 

[The  two  questions  presented  to  the  court  in  this  case,  (the 
facts  of  which  will  appear  from  the  Chancellor's  opinion,)  were, 
firstly,  into  what  proportions  was  to  be  divided  the  income  of 
certain  trust  property,  devised  to  two  for  life,  and  after  the  death 
of  one  of  them,  for  the  mutual  benefit  of  the  other,  and  her 
children  ;  remainder  to  the  said  children  in  fee.  And,  secondly, 
whether  a  trustee,  who,  as  executor,  had  received  a  commission 
on  property,  paid  into  the  trust  fund,  should  be  allowed,  as  trus- 
tee, an  additional  commission  on  the  same  property.] 


288  HIGH  COURT  OF  CHANCERY. 

THE  CHANCELLOR: 

In  the  will  of  the  late  Ignatius  Semmes,  who  died  in  the 
year  1843,  there  is  the  following  clause  :  "I  give,  and  devise 
to  Walter  Mitchell,  Esquire,  my  farm  called  Rose  Hill,  together 
with  all  the  rest  of  my  negroes,"  (some  being  manumitted  by 
a  previous  clause,)  "stock  of  every  description,  and  plantation 
utensils — in  trust,  to  and  for  the  following  uses  and  purposes, 
that  is  to  say  :  the  income  arising  therefrom,  to  be  applied  to 
the  mutual  benefit  of  my  uncle,  William  Holmes,  during  the 
life  of  my  said  uncle,  and  my  aunt  Sarah  Floyd ;  and  after  the 
death  of  my  said  uncle,  to  the  mutual  benefit  of  my  aunt  Sarah 
Floyd,  and  her  children  ;  and  after  the  death  of  my  said  aunt 
Sarah  Floyd,  to  the  use  and  benefit  of  the  children  of  my  said 
aunt  Sarah  Floyd,  until  the  youngest  shall  arrive  at  the  age  of 
twenty-one  years  ;  and  then,  I  will,  and  devise  the  said  farm, 
called  Rose  Hill,  together  with  the  rest  of  the  property  so  as 
aforesaid  left  in  trust,  to  the  children  of  my  aunt  Sarah  Floyd, 
to  them,  and  their  heirs  forever,  share  and  share  alike.  And 
for  his  care  and  trouble  in  the  execution  of  the  said  trust,  I 
give  to  the  said  Walter  Mitchell,  ten  per  cent,  upon  the  whole 
amount  of  property,  which  may  come  into  his  possession  as 
trustee." 

Mr.  Mitchell,  who  was  also  appointed  executor  of  the  will, 
assumed  the  execution  of  the  trust,  and  having  proceeded  for 
some  time  in  the  discharge  of  his  duty  as  trustee,  and  having 
passed  in  the  Orphans  Court  his  final  account  as  executor, 
filed  his  bill  in  this  court  on  the  7th  of  April,  1847,  making  the 
cestuis  que  trust  parties,  and  asking  the  aid  and  direction  of 
this  court,  in  the  administration  of  the  trust. 

There  does  not  appear  to  be  any  controverted  fact  in  the  cause, 
the  questions  presented  for  the  opinion  of  this  court,  which  de- 
pend upon  the  true  construction  of  the  will,  being  first,  with  re- 
gard to  the  rights  of  the  cestuis  que  trust — and,  secondly,  as  to 
the  compensation  which  the  trustee  may  be  entitled  to,  for  his 
risk  and  trouble  in  the  performance  of  his  trust. 

The  first  question,  relates  to  the  proportions  in  which  the  in- 
come of  the  trust  estate  shall  be  divided  ;  and  upon  that,  I  am 


MITCHELL  VS.  HOLMES.  289 

of  opinion,  that  during  the  life  of  William  Holmes,  the  uncle  of 
the  testator,  and  of  his  aunt,  Sarah  Floyd,  the  income  should 
be  divided  between  them  in  equal  moieties ;  and  that  the  title 
of  the  children  of  the  aunt,  to  participate  in  the  income  of  the 
trust  estate,  is  postponed  until  after  the  death  of  the  uncle. 
With  regard  to  the  proper  application  of  the  income,  during  the 
joint  lives  of  the  uncle  and  aunt,  there  does  not  seem  to  me  to 
be  much  difficulty,  it  being  clearly  the  intention  of  the  testator 
to  divide  it  equally  between  them. 

In  the  event  of  the  death  of  the  uncle,  living  the  aunt,  a 
question  of  some  difficulty  might  arise  respecting  the  proportions 
in  which,  upon  that  contingency,  the  income  of  the  estate  should 
be  divided  among  the  aunt  and  her  children  ;  but  as  this  con- 
tingency may  not  happen,  there  does  not  appear  to  be  any  ne- 
cessity for  an  expression  of  the  opinion  of  the  court  upon  it. 
As  the  case  is  submitted  without  argument,  there  seems  to  be 
a  peculiar  propriety  in  confining  the  opinion  of  the  court,  to 
the  questions  which  the  condition  of  the  case  at  this  time,  ren- 
ders important. 

The  other  question  has  reference  to  the  commission  of  the 
trustee. 

He  has  already  received  as  executor,  eight  per  cent,  upon 
the  personal  estate  now  in  his  hands  as  trustee;  and  the  answer 
of  the  defendant  Holmes,  insists,  that  the  trustee  is  only  entitled 
to  ten  per  cent,  commission  on  the  gross  income  of  the  personal 
estate. 

But  the  testator  has  said,  that  he  shall  have  "ten  per  cent,  up- 
on the  whole  amount  of  property,  which  may  come  into  his  hands 
as  trustee."  Not  upon  the  amount  of  income,  but  upon  the 
amount  of  property,  and  this  declaration  of  the  testator  gives 
the  law  of  the  case.  The  compensation  thus  fixed  by  the  tes- 
tator to  be  paid  to  the  trustee,  is  to  be  paid  to  him  as  such ; 
regarding  him,  when  acting  in  that  capacity,  as  filling  an  office 
wholly  distinct  from  the  office  of  executor.  The  per  centage 
is  to  be  paid  him  on  the  property,  which  may  come  into  his 
hands  as  trustee  ;  an  office,  so  far  as  this  question  is  concern- 
ed, entirely  distinct  from  that  of  executor,  and  the  compensa- 
VOL  i. — 25 


290  HIGH  COURT  OF  CHANCERY. 

tion  which  he  may  have  been  allowed  by  the  Orphans  Court 
for  discharging  the  duties  of  executor,  should  have  no  more  in- 
fluence upon  his  commission  as  trustee  under  this  will,  than  if 
the  two  offices  were  filled  by  different  persons. 

I  am  of  opinion,  therefore,  that  this  trustee  is  entitled  in  the 
settlement  of  his  accounts  as  trustee,  to  an  allowance  of  ten 
per  centum  upon  the  property  which  may  have  come  into  his 
hands  as  such.  He  is  not,  however,  to  be  allowed  ten  per 
cent,  or  any  thing  at  all,  upon  his  disbursements  ;  the  com- 
mission fixed  by  the  testator,  being  the  equivalent  for  his  ser- 
vices in  the  administration  of  the  trust,  which  includes  of  course 
the  proper  application  and  disbursement  of  the  income  of  the 
trust  estate.  An  order  will,  therefore,  be  passed  referring  the 
case  to  the  Auditor,  to  take  the  proper  accounts,  and  making 
provision  for  the  taking  of  such  evidence  as  the  case  may  require. 

[No  appeal  was  taken  from  this  order.] 


MARY  MOODY  ET  AL.    ~\ 

vs.  £.     SEPTEMBER  TERM,  1848. 

EMILY  ELLIOTT  ET  AL.  3 

[CONSTRUCTION  op  WILL.] 

A  TESTATOR  devised  certain  real  and  personal  property  to  his  wife,  "to  her 
use,  for  the  benefit  of  her  and  her  children  under  age,  and  after  they  all  come 
of  age,"  to  his  wife  during  her  natural  life,  and  "no  longer;"  and  after  her 
death,  the  whole  "to  be  divided  equally,  share  and  share  alike,"  between  the 
testator's  seven  children,  (naming  them,)  or  equally  between  such  as  shall 
then  be  living.  It  was  HELD — 

That,  though  this  will  was  executed  prior  to  the  act  of  1822,  ch.  162,  which 
abolishes  thereafter  estates  in  joint-tenancy,  unless  the  devise  expressly  de- 
clares, that  the  property  shall  be  so  held,  this  devise  does  not  create  an 
estate  in  joint-tenancy. 
The  words,  "to  be  equally  divided,  share  and  share  alike,"  even  in  a  deed, 

would  create  a  tenancy  in  common. 

The  will  being  prior  to  the  act  of  1825,  ch.  119,  and  there  being  no  words  of 
inheritance  or  perpetuity,  or  any  other  language  used,  from  which  the  inten- 
tion of  the  testator  to  pass  a  fee  could  be  clearly  ascertained,  it  was  held, 
that  the  children  took  estates  for  life  only. 


MOODY  VS.  ELLIOTT.  291 

The  true  construction  of  the  whole  clause  is — That  the  widow  took  an  estate 
for  life — for  a  period  thereof  to  be  held  by  her,  for  the  benefit  of  herself  and 
her  children,  that  is,  during  their  minority.  Upon  the  children  attaining 
their  full  age,  the  widow  still  living,  her  estate  would  continue  until  her 
death  disencumbered  of  any  charge  on  account  of  the  children  ;  and,  upon 
her  demise,  the  limitation  over  for  life  to  the  children  would  take  effect,  and 
upon  their  death,  the  inheritance  would  pass  to  the  heirs  at  law  of  the  tes- 
tator, as  property  undisposed  of  by  the  will. 

[The  question  involved  in  this  case,  relates  to  the  construc- 
tion of  the  will  of  James  Elliott,  deceased,  who  died  in  1809, 
and  is  brought  before  the  court  by  exceptions  to  the  Auditor's 
report ;  the  nature  of  the  case  being  sufficiently  explained  by 
the  Chancellor's  statement  of  the  facts,  and  his  comments 
thereon  :] 

THE  CHANCELLOR: 

The  question  relates  to  the  disposition  of  the  proceeds  of  a 
house  and  lot  on  Aisquith  street,  in  the  city  of  Baltimore,  sold 
under  a  decree  of  this  court. 

The  clause  in  the  will  devising  this  property,  is  in  the 
following  words  :  "I  give  and  devise  unto  my  beloved  wife, 
Mary  Elliott,  my  house  and  lot  on  the  east  side  of  Aisquith 
street,  with  all  the  improvements  and  privileges  thereto  belong- 
ing in  fee-simple,"  (and  certain  personal  property,)  "to  her  use, 
for  the  benefit  of  her  and  her  children  under  age,  and  after  they 
all  come  of  age,  to  my  wife — her  natural  life,  for  her  to  peace- 
ably enjoy,  and  no  longer.  She  to  pay  all  taxes  that  may  arise, 
and  after  her  death  the  whole  of  this  demise,  both  real  and  per- 
sonal to  be  divided  equally,  share  and  share  alike,  between  my 
seven  children,  five  sons  and  two  daughters,"  (naming  them,) 
"or  equally  between  all  those  of  my  children  as  shall  then  be 
living." 

The  will  contains  various  other  clauses,  affecting  other  por- 
tions of  the  property  of  the  testator,  but  has  no  residuary  clause 
disposing  of  such  portions  of  his  estate  as  may  not  be  embracecL^ 
in  the  specific  devises  and  bequests.  ^^ 

Four  of  the  children  are  dead  ;  two,  John  and  Joseph,  leav- 
ing issue  ;  and  James  and  Thomas,  without  issue ;  and,  the 


292  HIGH  COURT  OP  CHANCERY. 

bill  was  filed  by  the  widow,  who  married  a  second  time,  (and 
whose  second  husband  has  also  died,)  and  several  of  the 
children  of  the  testator,  against  other  of  his  children,  for  the 
sale  of  this  property  ;  upon  the  allegation,  that  it  was  not  sus- 
ceptible of  partition,  and,  that  it  would  be  advantageous  to  all 
parties  concerned  that  it  should  be  sold,  and  the  proceeds  di- 
vided among  them  according  to  their  several  and  respective 
rights. 

In  the  account  of  the  Auditor  reported  on  the  7th  of  July 
last,  the  net  proceeds  of  the  sale,  after  assigning  to  the  widow 
a  portion  thereof,  as  an  equivalent  for  her  life  estate,  are  dis- 
tributed among  the  surviving  children,  and  the  grandchildren 
of  the  testator,  giving  to  the  grandchildren  the  portions  of  their 
respective  parents ;  and  the  point  to  be  decided  is,  whether 
this  distribution  is  the  proper  one. 

The  bill  proceeded  upon  the  hypothesis,  that  the  whole  estate 
was  disposed  of  by  the  will,  and  must  be  understood  as  conced- 
ing, that  the  grandchildren  had  succeeded  to  the  rights  of  their 
parents,  as  otherwise  there  could  have  been  no  motive  for 
making  them  parties.  It  was,  however,  subsequently  supposed 
that  these  grandchildren  of  the  testator,  were  not  entitled  to 
any  portion  of  this  money,  upon  the  ground  that  the  limitation 
over,  after  the  termination  of  the  life  estate  of  the  widow,  was 
restricted  to  the  children  who  may  be  living  when  that  event 
shall  occur.  And  in  opposition  to  the  right  of  the  grand- 
children, it  was  also  insisted  in  the  argument,  that  the  children 
of  the  testator,  whether  the  benefit  of  the  devise,  was  to  be 
confined  to  the  survivors  of  the  widow  or  not,  took  as  joint 
tenants,  and  that  consequently,  the  children  of  the  deceased 
brothers  must  be  excluded,  upon  the  doctrine  of  survivorship 
— the  will  having  been  executed  prior  to  the  act  of  1822,  ch. 
162,  which  abolishes  thereafter,  estates  in  joint-tenancy,  ex- 
cept where  the  deed,  devise,  or  instrument  of  writing,  expressly 
declares,  that  the  property  shall  be  so  held. 
f  It  appears  to  me,  however,  to  be  very  clear  upon  authority, 
that  this  devise  does  not  create  an  estate  in  joint-tenancy. 
Perhaps,  in  the  present  disposition  of  the  courts  in  regard  to 


MOODY  VS.  ELLIOTT.  293 

these  estates,  it  would  not  do  so  even  in  a  deed  and  in  a  court 
of  law ;  but,  unquestionably,  in  a  court  of  equity,  and  acting 
upon  a  will,  it  cannot  have  that  effect.  4  Kent,  361. 

The  words  of  the  devise  are,  "to  be  divided  equally,  share 
and  share  alike,"  which  words,  even  in  a  deed,  have  been  con- 
strued to  create  a  tenancy  in  common.  1  Thos.  Coke,  773, 
note  42.  And  the  cases  referred  to  in  the  same  note  show, 
that  the  words,  "share  and  share  alike,"  or  "between,"  or  any 
other  words  indicating  an  intention,  that  the  devisees  shall 
take  several  and  distinct  shares,  will  make  them  tenants  in  ^ 
common.  ^9r 

The  children,  therefore,  of  the  testator,  take  as  tenants  in 
common,  after  the  determination  of  the  life  estate  of  the  widow ; 
and,  as  I  think,  they  take  this  estate  for  life  only — the  will 
being  prior  to  the  act  of  1825,  chap.  119,  and,  there  being  no 
words  of  inheritance  or  perpetuity,  or  any  other  language  from 
which  the  intention  of  the  testator  to  pass  a  fee,  can  be  clearly 
ascertained,  which,  according  to  the  authorities,  is  indispensa- 
ble, even  in  the  case  of  a  will,  where  a  much  more  liberal  con- 
struction is  allowed  than  in  a  deed  or  grant. 

As,  therefore,  these  parties  took  as  tenants  in  common  in  re- 
mainder for  life  only,  it  follows  that  the  fee  was  undisposed  of 
by  the  will,  and,  consequently,  upon  the  termination  of  the 
various  estates  for  life,  the  heirs  of  the  testator  would  be  en- 
titled to  the  possession  and  enjoyment  of  the  inheritance. 

The  true  construction  of  this  clause  of  the  will  in  my  opinion, 
is  this.  The  widow  took  an  estate  for  life — for  a  period  there- 
of, to  be  held  by  her,  for  the  benefit  of  herself  and  her  children, 
that  is,  during  their  minority.  Upon  the  children  attaining 
their  full  age,  the  widow  still  living,  her  estate  would  continue 
until  her  death,  disencumbered  of  any  charge  on  account  of  the 
children  ;  and  upon  her  demise  the  limitation  over  for  life  to 
the  children  would  take  effect,  and  upon  their  deaths  the  in- 
heritance would  pass  to  the  heirs  at  law  of  the  testator,  as 
property  undisposed  of  by  his  will. 

The  Auditor  by  his  report  of  the  7th  of  July   last,  gives  to 
the  children  of  the  two  sons  of  the  testator,  who  died  leaving 
25* 


294  HIGH  COURT  OF    CHANCERY. 

issue,  the  portion  to  which  their  respective  parents  would  have 
been  entitled  ;  that  is,  he  gives  to  each  family  of  children  one- 
fifth  of  the  money,  after  deducting  the  share  awarded  to  the 
widow  for  her  life  estate ;  and  the  remaining  three-fifths,  he 
assigns  to  the  surviving  children.  This  distribution  was  made 
upon  the  hypothesis,  that  the  whole  estate  passed  by  the  will, 
and,  that  the  children  of  the  deceased  children  of  the  testator, 
succeeded  to  the  interests  of  their  respective  parents,  which 
was  the  view  taken  by  the  draftsman  of  the  bill. 

This  view,  however,  is,  in  my  judgment,  erroneous,  inas- 
much as  the  inheritance  did  not  pass  under  the  will ;  but,  as 
the  proportions  awarded  to  the  parties  by  this  account,  are 
precisely  the  same  as  they  would  be,  if  the  inheritance  had  been 
regarded  by  the  Auditor  as  undisposed  of  by  the  will,  there  is 
no  reason  why  another  account  should  be  stated.  In  either 
aspect  of  the  case,  the  result  would  be  the  same,  and  sending 
the  case  back  to  the  Auditor  would  be  accumulating  costs  for 
no  object. 

The  idea  was  thrown  out  in  the  course  of  the  argument,  that 
under  this  devise  the  widow  took  the  entire  estate  ;  but,  I  did 
not  understand,  that  it  was  very  seriously  pressed,  and  it  ap- 
peared to  me  manifest,  that  such  a  construction  would  be 
•clearly  repugnant  to  the  intention  of  the  testator,  and,  therefore, 
wholly  inadmissible.  The  language  of  the  will  is  clear  and  ex- 
plicit, that  she  should  hold  for  life,  and  "no  longer,"  and 
although  in  a  previous  part  of  the  clause,  the  words  "in  fee- 
simple"  are  employed,  it  is  obvious  they  were  not  used  in  the 
sense  attributed  to  them. 

An  order  will  pass  ratifying  the  first  account  of  the  Auditor. 

£No  appeal  was  taken  in  this  case.] 


SNYDER  VS.  SNYDER.  295 


HANNAH  SNYDER  ET  AL.^ 

vs.  >     SEPTEMBER  TERM,  1848. 

JULIA  SNYDER  ET  AL.    3 

[JURISDICTION.] 

THE  Court  of  Chancery  has  no  authority  over  a  trustee  acting  under  the  de- 
cree of  a  court  of  concurrent  jurisdiction.  If  such  an  authority  were  exer- 
cised by  the  co-ordinate  equity  tribunals  of  the  state,  the  utmost  confusion  and 
clashing  of  power  would  ensue. 

THE  CHANCELLOR  : 

This  case  being  submitted  on  the  part  of  the  complainants, 
during  the  sittings  of  the  term,  and  being  now  laid  before 
the  court,  without  argument,  the  proceedings  have  been  read 
and  considered. 

The  bill,  which  was  filed  on  the  equity  side  of  Baltimore 
County  Court,  professes  to  be  a  creditor's  bill,  and  prays  for 
the  sale  of  the  real  estate  of  James  Snyder,  deceased,  for  the 
payment  of  his  debts. 

By  an  amended  bill  also  filed  in  the  same  court,  on  the  26th 
of  November,  1847,  it  appears,  and  is  alleged,  that  prior  to  the 
filing  the  original  bill,  the  complainants  had  discovered,  that 
the  defendants  had  obtained  a  decree  in  said  court  by  consent, 
and  without  the  knowledge  of  the  complainants,  for  the  sale 
of  the  property  in  question,  for  the  purpose  of  distribution,  and, 
that  the  same  had  been  sold  by  trustees  appointed  for  that  pur- 
pose ;  and  the  bill  prays,  that  the  said  trustees  be  prohibited 
from  paying  any  portion  of  the  proceeds  of  the  sale  to  the  de- 
fendants, and  that  they  be  required  to  bring  the  same  into  court, 
to  abide  the  decree  which  may  be  passed  in  this  cause. 

Answers  to  this  bill,  original  and  amended,  were  filed  by 
the  defendants  to  the  original  bill,  and  also  by  the  trustees 
appointed  to  make  the  sale,  and  after  some  proof  had  been 
taken  under  a  commission,  the  case  was  transferred  to  this 
court,  under  the  act  of  assembly,  upon  the  suggestion  of 
the  complainants.  But,  the  case  in  which  the  decree  passed, 
under  which  the  sale  of  property  was  made,  has  not  been  brought 


296  HIGH  COURT  OF  CHANCERY. 

to  this  court,  and  is,  consequently,  now  depending  on  the  equity 
side  of  Baltimore  County  Court. 

And,  the  application,  therefore,  to  this  court  now  is,  that 
trustees,  appointed  by  a  decree  of  Baltimore  County  Court,  to 
make  sale  of  property  in  a  case  which  is  still  there,  shall  bring 
into  this  court  the  proceeds  of  such  sale  to  await  the  decree 
which  may  be  passed  by  the  court  in  this  cause. 

It  is,  I  think,  very  clear,  that  this  cannot  be  done — the 
case  of  Brown  vs.  Wallace,  4  Gill  and  Johns.,  469,  is  directly 
opposed  to  it.  The  remedy  of  the  plaintiffs  (if  they  have  any) 
would  seem  to  be  by  a  proceeding  in  the  court  under  whose  au- 
thority the  sale  was  made,  and,  perhaps,  by  a  petition  in  the 
same  cause.  It  is  very  certain,  however,  that  this  court  can- 
not order  a  trustee,  acting  under  the  decree  of  a  court  of  con- 
current jurisdiction,  to  do  any  thing.  If  such  an  authority  were 
exercised  by  the  co-ordinate  equity  tribunals  of  our  state,  the 
utmost  confusion  and  clashing  of  power  would  ensue. 

[The  Chancellor  then  ordered,  that  the  "bill  and  the  amend- 
ed bill  of  complaint"  be  dismissed  with  costs.] 

[No  appeal  was  taken  from  this  decree.] 


SAMUEL  W.  THOMAS 

vs. 
WOOD,  EX'R  OF  HARRISON. 

TI-TM    184ft 
WOOD,  EX'R  OF  HARRISON,      r 

vs. 

SAMUEL   W.  THOMAS   ET   AL. 
(CONSOLIDATED.) 

[CONVERSION — FAILURE  OF  DEVISE  TO  WIDOW — MANUMISSION — ADMINISTRATION 
DE  BONIS  NOV.] 

LANDS  devised  to  be  sold  are  turned  into  money,  and  considered,  in  equity,  as 

personal  estate. 
A  testator  devised  his  lands  to  his  executors  to  be  sold,  and  gave  a  legacy   of 

|2000  to  his  niece,  to  be  paid  her  out  of  the  proceeds  of  the  sale  of  his  real 

estate.     HELD — 


THOMAS  VS.  WOOD.  297 

That  the  surviving  husband  of  the  niece,  had  the  same  title  to  demand  this  lega- 
cy bequeathed  his  wife,  as  if  it  had  been  payable  out  of  the  personal  estate 
of  the  testator  ;  and,  that  it  made  no  difference  whether  the  wife  died  before 
or  after  the  sale  actually  took  place. 

A  partial  failure  of  a  devise  to  a  widow  who  abides  by  the  will,  will  not  entitle 
her  to  compensation  out  of  the  residue  of  the  estate,  unless  the  failure  is  to 
such  an  extent,  as  to  make  what  she  receives  under  the  will,  less  in  value 
than  her  legal  share  of  her  husband's  estate. 

When  it  is  said  in  the  act  of  1798,  ch.  101  ;  sub.  ch.  13,  sec.  5,  that  a  widow 

.  standing  by  the  will  of  her  husband,  is  to  be  considered  as  a  purchaser  with 
a  fair  consideration,  it  cannot  be  meant,  that  she  is  so  to  be  regarded,  what- 
ever may  be  the  extent  of  the  devise  to  her. 

But,  the  sound  and  just  rule  must  be,  that  she  is  to  be  considered  a  purchaser 
of  the  devise,  to  the  value  of  her  share  or  legal  right. 

The  whole  of  the  testator's  property  will,  in  equity,  be  charged  with  the  pay- 
ment of  his  debts,  in  favor  of  his  manumitted  slaves,  and,  in  a  judicial  pro- 
ceeding, to  determine  the  invalidity  of  a  deed  of  manumission  as  being  in 
prejudice  of  creditors,  the  negro  manumitted  is  entitled  to  the  assistance  of 
the  heir  at  law,  or  the  person  holding  the  real  estate,  in  taking  an  account  of 
the  amount  thereof  before  the  insolvency  of  the  deceased  manumittor  can 
be  legally  ascertained. 

With  regard  to  the  manumittor  himself  and  his  legal  representatives,  the  man- 
umission, though  in  prejudice  of  creditors,  is  valid,  and  the  negroes  manu- 
mitted are  not  assets  for  the  payment  of  debts. 

Where  the  administrator  of  an  executor  takes  out,  jointly  with  another,  letters 
of  administration  de  bonis  turn,  on  the  estate  of  the  testator,  he  does  not  ex- 
clusively represent  both  estates  ;  and,  consequently,  there  can  be  no  trans- 
fer, by  operation  of  law,  of  the  property  in  his  hands,  as  administrator,  to 
him  as  administrator  de  bonis  non. 

[Joseph  G.  Harrison,  deceased,  by  his  will,  dated  2d  Novem- 
ber, 1844,  devised  to  his  wife,  Matilda  B.  Harrison,  eighty 
acres  of  land  ;  and  devised,  that  his  executor  should  sell  the 
rest  of  his  real  estate,  and  pay  to  his  wife  one-third  of  the  bal- 
ance of  the  proceeds  which  might  remain  after  the  payment  of 
his  debts.  He  also  devised  to  his  niece,  Isabella  Thomas,  two 
thousand  dollars,  without  interest,  to  be  paid  out  of  the  pro- 
ceeds of  the  sale  of  his  real  estate  ;  and  the  balance  of  the 
money  arising  from  said  sale,  he  gave  to  his  nephew,  Thomas 
L.  Simmons.  The  testator,  by  his  will,  also  manumitted  some 
of  his  slaves  immediately,  and  to  the  others  he  gave  the  privi- 
lege, after  serving  out  a  term  of  years,  of  emigrating  to  Africa. 

Such  proceedings  were  had  in  the  above  cases  consolidated, 
that  a  sale  of  the  real  estate  was  made  by  Wood,  the  executor, 


298  HIGH  COURT  OF  CHANCERY. 

(who  was  appointed  trustee  for  that  purpose,)  and  ratified  by 
the  court ;  and  certain  questions  having  arisen  relative  to  the 
legacies  bequeathed  by  the  testator,  the  nature  of  which  will 
appear  from  the  Chancellor's  opinion,  the  case  was  submitted 
to  him  upon  written  arguments.  And  at  this  term,  he  delivered 
his  opinion  as  follows :] 

THE  CHANCELLOR: 

Wood,  the  executor,  in  his  answer  to  the  bill  filed  by  Thomas, 
suggests  a  doubt,  whether  the  latter  is  entitled,  as  surviving 
husband,  to  the  two  thousand  dollars,  which  his  deceased  wife, 
Isabella  Thomas,  was  to  have  received  out  of  the  proceeds  of 
the  real  estate  which  was  to  have  been  sold  by  the  executor,  she 
having  died  before  the  sale  was  made ;  and  supposed  that  the 
same  may  now  belong  to  her  brother  and  sister,  she  (the  wife) 
having  died  without  issue.  And  this  is  the  first  question  to  be 
considered.  The  brother  and  sister  in  their  answers  do  not  set 
up  any  claim  to  this  money,  but  my  opinion  in  regard  to  it  is 
not  placed  upon  this  ground. 

The  testator  has  directed  that  his  land  should  be  sold  by  his 
executor,  and  out  of  the  proceeds  thereof,  Isabella,  the  wife  of 
Thomas,  should  be  paid  the  sum  of  two  thousand  dollars.  This 
provision  in  the  will  converted  the  land,  in  the  view  of  a  court 
of  equity,  into  money,  and  the  surviving  husband  has  the  sanae 
title  to  demand  the  legacy  bequeathed  his  wife  as  if  it  had  been 
payable  out  of  the  personal  estate  of  the  testator. 

The  Court  of  Appeals  in  the  case  of  Hurtt  vs.  Fisher,  I  Har. 
8f  Gill,  88,  recognise  in  the  most  explicit  terms  the  rule,  that 
lands  devised  to  be  sold  are  turned  into  money,  and  considered 
in  equity  as  personal  estate.  In  that  case  to  be  sure,  in  which 
the  surviving  husband  (as  here)  was  seeking  to  recover  a  legacy 
which  his  wife  was  entitled  to,  out  of  the  proceeds  of  the  real 
estate  directed  to  be  sold — the  wife  survived  until  after  the  sale 
was  made  ;  which  the  court  said  removed  all  doubt  of  his  right 
to  recover;  but  it  appears  to  me  very  obvious  from  the  manner 
in  which  the  rule  of  law  is  asserted,  that  the  result  would  have 
been  the  same  if  the  wife  had  died  prior  to  the  sale.  In  the 


THOMAS  VS.  WOOD.  299 

eye  of  a  court  of  equity,  the  will  of  the  testator  had  converted 
the  real  into  personal  estate,  and  the  actual  conversion  by  a 
sale  could  not  be  necessary  to  give  validity  to  rights  founded 
upon  the  equitable  principle.  That  principal  alone  carries  with 
it  all  the  consequences  upon  the  rights  of  the  parties  which 
would  result  from  an  actual  sale  ;  and,  therefore,  the  circum- 
stance that  the  sale  had  actually  taken  place  in  the  lifetime  of 
the  wife,  in  the  case  of  Hurtt  and  Fisher,  could  not  be  neces- 
sary to  establish  the  title  of  the  surviving  husband. 

In  the  case  of  Leadenham  vs.  Nicholson,  1  H .  fy  G.,  267,  the 
learned  judge  who  delivered  the  opinion  of  the  court,  re-assert- 
ed the  principle  that  land  directed  to  be  sold  and  converted  into 
money,  will,  before  a  sale,  be  considered  as  money,  and  pass 
as  such. 

My  opinion,  therefore,  is,  without  multiplying  authorities 
upon  a  point  which  seems  very  clearly  settled,  that  Samuel  W. 
Thomas,  the  surviving  husband  of  Isabella,  is  entitled  to  re- 
ceive the  legacy  of  two  thousand  dollars  bequeathed  his  wife. 

The  second  question  has  reference  to  the  right  of  the  testa- 
tor's wife,  Matilda  B.  Harrison. 

It  appears,  that  seventy  of  the  eighty  acres  devised  her  by 
her  husband,  being  part  of  his  dwelling  plantation,  were  not 
his  property,  but  the  property  of  the  Honorable  Kinsey  Johns, 
and  that,  by  consent  of  all  parties,  those  seventy  acres  have  been, 
or  are  to  be,  given  up  to  him.  Mrs.  Harrison,  in  her  answer 
says,  that  she  made  no  objection  to  such  surrender,  under  the 
belief  that  she  was  to  be  fully  compensated  therefor,  and  the 
question  is,  whether  she  is  entitled  to  such  compensation  out  of 
the  residue  of  the  estate. 

She  did  not  renounce  the  will,  and  as  has  been  stated,  is  en- 
titled to  one-third  of  the  proceeds  of  the  sales  of  the  real  estate 
after  payment  of  debts,  and  to  ten  acres,  the  residue  of  the 
eighty  acres  devised  her  by  the  will. 

I  am  of  opinion,  that  Mrs.  Harrison,  (the  widow,)  is  not  en- 
titled to  compensation  out  of  the  residue  of  the  estate,  for  the 
loss  of  this  portion  of  the  real  estate  devised  to  her  by  her  hus- 
band, unless  it  shall  turn  out  that  the  share  which  she  will  re- 


300  HIGH  COURT  OF  CHANCERY. 

ceive  of  the  real  estate  is  not  equal  to  that  portion  thereof  which 
she  would  be  entitled  to  as  dower. 

If  there  had  been  a  total  failure  in  the  real  devise  to  her,  the 
case  might  be  governed  by  different  considerations,  as  the  act 
of  assembly  requires  a  disposition  of  a  part  of  both  the  real  and 
personal  estate  to  divest  the  wife  of  a  right  to  both  ;  and  such 
seems  to  have  been  the  view  taken  by  the  court  in  Griffith  vs. 
Griffith's  Ex'rs,  4Har.  fy  McHen.,  101,  and  Coomes  vs.  Clem- 
ents, 4  Har.  fy  Johns. ,  480.  But,  as  in  this  case,  the  devise  of 
real  estate  to  the  wife  was  not  entirely  invalid  or  inoperative,  I 
do  not  think  she  can,  because  of  a  failure  of  a  part  of  such  de- 
vise, claim  indemnity  out  of  the  residue  of  the  estate,  to  the 
prejudice  of  the  other  parties,  unless  as  stated  above,  the  share 
which  she  will  now  receive  should  be  less  in  value  than  her 
dower. 

The  counsel  of  Mrs.  Harrison,  after  quoting  the  language  of 
the  5th  section  of  the  13th  sub-chapter  of  the  act  of  1798,  sup- 
posed that  a  widow,  who  stands  by  the  devise  made  to  her  by 
her  husband,  is  to  be  regarded  as  any  other  purchaser,  and  en- 
titled, if  the  title  to  the  land  devised  fails,  to  be  compensated 
therefor  out  of  the  residue  of  the  estate  of  the  vendor. 

It  is  true,  the  section  referred  to  does  say,  "that  a  widow 
accepting  or  abiding  by  a  devise  in  lieu  of  her  legal  right  shall 
be  considered  as  a  purchaser  with  a  fair  consideration  ;"  but 
this  language  is  qualified  by  the  preceding  words  of  the  same 
section,  which  saves  the  legal  rights  of  widows  only  in  the 
cases  in  which  "nothing  shall  pass  by  such  devise." 

If,  therefore,  anything  passed  by  the  devise  to  the  widow, 
and  she  stands  by  the  will,  it  might  be  difficult  to  make  out  her 
right  to  compensation  out  of  the.  residue  of  the  estate,  because 
of  a  partial  failure  of  the  devise  to  her. 

In  view,  however,  of  the  language  of  the  Court  of  Appeals 
in  Coomes  vs.  Clements,  and  having  a  just  regard  to  the  spirit 
of  the  act  of  assembly  and  the  strong  equity  of  the  case,  I  have 
come  to  the  conclusion,  that  if  the  devise  to  the  widow  is  in- 
valid to  such  an  extent  as  to  make  what  she  receives  under 
the  will,  less  in  value  than  her  legal  share  of  her  husband's 


THOMAS  VS.  WOOD.  301 

estate,  she  should  be  recompensed  out  of  the  residue  thereof, 
so  far  as  to  place  her  in  the  same  situation  as  if  she  had  re- 
nounced the  will.  When  it  is  said  that  the  widow,  standing  by 
the  will  of  her  husband,  is  to  be  considered  as  a  purchaser  with 
a  fair  consideration,  it  cannot  be  meant  that  she  is  so  to  be  re- 
garded, whatever  may  be  the  extent  of  the  devise  to  her.  Be- 
cause, if  that  were  so,  the  rights  of  the  creditors  of  the  husband 
would  be  entirely  at  his  mercy.  He  might  defeat  them  by  de- 
vising his  whole  real  estate  to  his  wife.  But  the  sound  and 
just  rule  must  be,  that  she  is  to  be  considered  as  a  purchaser  of 
the  devise  to  the  value  of  her  share  or  legal  right ;  and  such  is 
the  view  of  the  Chief  Justice  in  Coomes  vs.  Clements,  and  the 
decision  of  the  late  Chancellor  in  Margaret  HaWs  case,  1 
Bland,  203. 

[The  remaining  question  was,  whether  the  pecuniary  lega- 
cies were  a  charge  upon  the  manumitted  property,  in  case  the 
other  personal  property  should  prove  insufficient  to  pay  both 
debts  and  legacies  ?  And,  as  to  this,  the  Chancellor  said  :] 

It  is  stated,  and  the  statement  seems  to  be  supported  by  the 
accounts  of  the  executor  passed  in  the  Orphans  Court,  that  the 
personal  estate,  independently  of  the  slaves,  is  quite  sufficient 
to  pay  the  debts,  and  I  can,  therefore,  see  no  reason  why  they 
should  not  receive  the  benefit  intended  to  be  conferred  upon 
them  by  the  will.  The  Court  of  Appeals  in  the  case  of  Allein 
vs.  Sharp,  7  G.  #  /.,  96,  decided  that  the  act  of  1796,  ch.  67, 
charged  the  whole  of  the  manumittor's  property  with  the  pay- 
ment of  his  debts  in  favor  of  his  manumitted  slaves,  and  that  in 
a  judicial  proceeding  to  determine  the  invalidity  of  a  deed  of 
manumission,  as  being  in  prejudice  of  creditors,  the  negro  man- 
umitted is  entitled  to  the  assistance  of  the  heir  at  law,  or  the 
person  holding  the  real  estate,  in  taking  an  account  of  the 
amount  thereof,  before  the  insolvency  of  the  deceased  manu- 
mittor  can  be  legally  ascertained.  But,  in  this  case,  the  real 
estate  is  devised  to  be  sold,  and  after  the  payment  of  debts  the 
residue  of  the  proceeds  of  sale  is  directed  to  be  distributed 
VOL  .—26 


302  HIGH  COURT  OF  CHANCERY. 

amongst  the  parties  mentioned  in  the  will  in  certain  propor- 
tions; and  it  is  not  now  proposed  to  be  decided,  whether  under 
such  circumstances  the  party  manumitted  has  a  right  to  look  to 
the  avails  of  the  real  estate  to  give  validity  to  the  manumission. 
If  it  shall  turn  out  that  the  personal  estate  itself,  without  the 
negroes  manumitted,  is  sufficient  to  satisfy  creditors,  there  can 
be  no  necessity  for  deciding  the  other  question. 

In  this  case,  the  creditors,  if  any  remain  unpaid,  are  not  be- 
fore the  court,  and  no  judgment  that  can  be  pronounced  here 
can  effect  their  rights.  They  cannot  be  precluded  from  show- 
ing hereafter,  if  such  is  the  fact,  that  the  estate  of  the  testator 
was,  without  the  negroes,  inadequate  for  the  payment  of  debts, 
and  upon  establishing  such  inadequacy,  the  proper  relief  would 
be  accorded  to  them.  But  with  regard  to  the  manumittor  him- 
self and  his  legal  representatives,  the  manumission,  though  in 
prejudice  of  creditors,  is  valid,  and  the  negroes  manumitted  are 
not  assets  for  the  payment  of  debts. 

These  principles  are  also  decided  in  Allein  vs.  Sharp,  and 
would  entitle  the  negroes,  in  this  case,  to  their  freedom,  as 
against  the  executor  of  the  testator.  Before,  however,  a  final 
disposition  is  made  of  this  question,  the  case  will  be  sent  to 
the  Auditor,  that  the  necessary  accounts  may  be  taken  to  as- 
certain if  the  debts  are  paid,  or  if  there  are  assets  to  pay  them. 

[Exceptions  were  taken  to  the  report  of  the  Auditor,  and  an 
agreement  was  signed  by  counsel,  that  the  case  should  go  back 
to  the  Auditor,  for  the  purpose  of  making  such  corrections  of 
his  accounts  as  may  be  required  by  the  admission  of  parties, 
and  by  certain  accounts  and  proofs,  filed  in  the  cause  since  the 
date  of  the  report,  and  such  additional  proofs  -as  may  be  laid 
before  him. 

John  Wood,  the  executor,  appears  to  have  passed  four  ac- 
counts in  the  Orphans  Court,  and  upon  his  death,  Robert  Plum- 
mer,  his  administrator,  passed  a  fifth  and  final  account  of  the 
estate  of  the  testator,  Harrison. 

Upon  the  death  of  Wood,  Plummer,  his  administrator,  and 
Matilda  B.  Harrison,  the  widow  of  the  testator,  took  out  letters 


THOMAS  VS.  WOOD.  303 

de  bonis  non,  upon  his  estate,  and  passed  an  account  in  the 
Orphans  Court  in  October,  1849. 

Among  the  exceptions  to  the  Auditor's  report  are  the  follow- 
ing :  1st.  "Because  the  Auditor  has  charged  the  administra- 
tors, d.  b.  n.,  of  Joseph  G.  Harrison,  in  these  accounts  with 
various  suras  of  money  and  property  which  were  more  properly 
chargeable  to  John  Wood,  the  executor  of  Joseph  G.  Harrison ; 
and  because  he  has  stated  no  account  showing  the  liability  of 
the  administrators,  d.  b.  n.,  and  estate  of  said  Wood  separately, 
as  should  be  done." 

2d.  "Because  in  account  B.  large  sums  of  money  are  charg- 
ed for  the  hire  of  negroes,  on  the  supposition  that  the  same 
were  received,  whereas  it  does  appear  by  the  administration 
accounts,  and  by  them  alone,  the  only  proof  of  such  receipts, 
that  other,  less  and  fewer  sums  was  received,  and  these  not  by 
the  persons  charged  therewith." 

3d.  "Because  in  account  B.  these  exceptants  are  charged 
with  higher  rent,  and  more  in  amount  than  was  received  by 
John  Wood — but  that  no  part  thereof  should  be  charged  against 
them." 

4th.  "Because  the  value  of  the  services  of  the  said  negroes, 
as  charged  in  account  B.,  for  three  years  after  the  testator's 
death,  belong,  under  his  will,  to  the  exceptant,  Matilda  B.  Har- 
rison." 

llth.  "Because,  in  said  accounts,  or  some  of  them,  the  Aud- 
itor should  have  assigned  to  Mrs.  Matilda  B.  Harrison,  the 
widow,  so  much  of  the  personal  or  real  estate  as  would  com- 
pensate her,  for  the  loss  she  has  sustained  in  the  seventy  acres 
of  land  devised  to  her  by  her  husband,  and  afterwards  given  up 
to  Dr.  Johns." 

Upon  these  exceptions  the  Chancellor  said  :] 

The  accounts  settled  by  Wood,  as  the  executor  of  Joseph  G. 
Harrison,  furnish  to  a  considerable  extent,  the  basis  of  the  ac- 
counts of  the  Auditor,  though  they  have  been  modified  by  cer- 
tain depositions,  and  other  evidence  introduced  in  the  cause  by 
the  counsel  for  the  administrators  de  bonis  non.  No  account 


304  HIGH   COURT  OF  CHANCERY. 

appears  to  have  been  stated  between  the  administrator  of  Wood, 
and  the  estate  of  Harrison,  and  as  the  same  person  does  not 
exclusively  represent  both  estates,  and  there  is  consequently  no 
transfer,  by  operation  of  law,  of  the  property  in  the  hands  of 
Plummer,  as  administrator  of  Wood,  to  Plummer  and  Harrison 
as  administrators  de  bonis  non  of  Harrison,  it  would  seem 
proper  that  such  account  should  be  stated.  Watkins  vs.  State, 
2  Gill  &  Johns.,  220. 

In  the  accounts  passed  in  the  Orphans  Court,  the  executor 
is  charged  with  various  sums  for  the  hire  of  servants,  for  rents 
of  the  real  estate,  and  for  produce  made  on  the  land  ;  and  as 
these  accounts  are,  prima  facie,  correct,  and  as  there  is  no  alle- 
gation in  the  cause,  that  more  was  received,  or  ought  to  have 
been  received,  than  the  sums  thus  charged,  I  do  not  conceive 
myself  authorized,  ex  mero  motu,  to  charge  the  executor  with 
additional  or  greater  sums  upon  proof,  which  appears  to  have 
been  introduced  for  a  different  purpose.  These  accounts,  there- 
fore, I  think,  should  be  assumed  to  be  correct,  unless  directly 
impeached  by  allegation  and  proof. 

The  fourth  exception  of  the  widow,  Matilda  B.  Harrison,  I 
do  not  think  well  taken. 

Among  the  provisions  made  by  the  testator  for  his  widow,  he 
bequeathed  her  his  negro  man  Major,  to  serve  her  for  three 
years  after  his  decease,  at  the  expiration  of  which  period  he  was 
to  have  the  privilege  of  going  to  Africa,  or  remaining  here  if 
the  law  will  permit  him  ;  and  then  the  will  says,  "that  all  the 
rest  of  my  negroes  shall  serve  my  wife,  under  the  direction  of 
my  executor,  for  the  interest  of  my  estate,  for  the  term  of  three 
years,"  and  after  that  time,  and  as  the  negroes  attained  the 
ages  designated  by  the  testator,  they  were  to  have  the  privilege 
of  going  to  Africa. 

There  was  a  previous  devise  of  real  estate  to  the  widow,  and 
an  authority  given  to  the  executor  to  sell  the  residue  of  the  tes- 
tator's real  estate  at  his  discretion ;  and  after  the  payment  of 
debts,  one-third  of  the  proceeds  of  this  residue  was  likewise 
given  to  her.  Two  thousand  dollars  of  these  proceeds  were 
then  given  to  Isabella  Thomas,  and  the  balance  thereof  to  the 


THOMAS  VS.   WOOD.  305 

testator's  nephew,  Thomas  L.  Simmons  ;  and  until  the  execu- 
tor shall  make  the  sale  of  the  real  estate,  the  will  declared, 
that  "all,  both  real  and  personal,  shall  remain  under  his  direc- 
tion, the  proceeds  applicable  to  the  payment  of  my  debts,  the 
support  of  my  wife  and  family,  and  to  the  college  charges  of  my 
nephew,  Thomas  L.  Simmons,"  &c. 

It  is  quite  clear,  I  think,  that  the  testator  did  not  intend  to 
give  his  wife  the  same  interest  in  the  services  of  the  residue  of 
his  negroes,  as  he  had  given  her  in  the  negro  named  Major, 
but  that  he  designed  that  these  negroes,  other  than  Major, 
should,  for  the  space  of  three  years,  be  employed  for  the  benefit 
of  his  estate,  for  the  payment  of  debts,  for  the  support  of  the 
wife  and  family,  and  the  education  of  his  nephew. 

It  appears  from  the  accounts,  that  the  proportion  of  the  pro- 
ceeds of  the  real  estate  distributed  to  the  widow,  Mrs.  Harrison, 
together  with  a  portion  of  the  devise  to  her  not  included  in  the 
seventy  acres  surrendered  to  Dr.  Johns,  is  fully  equivalent  to, 
and  in  fact  considerably  exceeds,  her  dower  interest  in  the  en- 
tire real  estate  of  her  husband,  and  this  being  so,  I  am  of 
opinion,  that  the  eleventh  exception  cannot  be  maintained,  and 
is  in  conflict  with  the  former  opinion  arid  order  of  this  court. 

The  solicitors  of  the  parties  have  signed  an  agreement,  which, 
among  other  things,  provides,  that  the  account  C.  distributing 
the  proceeds  of  the  real  estate  sold  by  the  trustee,  Robert  Plum- 
mer,  may  be  confirmed,  reserving,  however,  to  Mrs.  Harrison 
the  right  of  appeal  from  the  order  of  confirmation.  The  order, 
therefore,  will  be  according  to  this  agreement,  and  pro  forma. 

It  appears  by  a  paper  filed  on  the  5th  instant,  that  Thomas  L. 
Simmons,  the  residuary  devisee  and  legatee,  has  received,  and 
now  has  in  his  possession,  certain  negroes  and  sums  of  money; 
and  it  is  agreed  that  the  accounts  may  be  corrected  by  charg- 
ing the  said  devisee  and  legatee,  accordingly,  with  correspond- 
ing credits  to  the  executor,  John  Wood.  This  admission  will 
be  noticed  by  the  Auditor  in  stating  the  accounts,  now  about 
to  be  ordered,  but,  in  the  meantime,  there  seems  to  be  much 
difficulty  in  saying  what  shall  be  the  final  disposition  of  the 
property.  It  is  thought,  however,  that  there  can  be  no  impro- 
26* 


306  HIGH  COURT  OF  CHANCERY. 

priety  in  leaving  it  with  the  residuary  legatee  until  the  final 
accounts  are  taken. 

It  is,  thereupon,  ordered,  this  9th  day  of  April,  1850,  that  this 
case  be,  and  the  same  is  hereby,  again  referred  to  the  Auditor, 
with  directions  to  state  such  account  or  accounts  as  will  con- 
form with  the  foregoing  directions,  from  the  pleadings,  proofs 
and  admissions,  and  such  proofs  as  may  be  laid  before  him,  and 
the  parties  are  hereby  authorized  to  take  the  depositions  of  wit- 
nesses before  any  justice  of  the  peace,  or  before  the  Auditor, 
on  three  days'  notice  to  the  opposite  party,  or  his  or  her  solici- 
tor, such  depositions  to  be  taken  and  returned  on  or  before  the 
10th  day  of  June  next. 

[No  appeal  was  taken  in  this  case.] 


AMOS  A.  WILLIAMS  •* 

vs.  f 

THE  SAVAGE  MANUFAC-  (    SEPTEMBER  TERM,  1848. 

TURING   COMPANY.  ) 


[VACATING   SETTLEMENT — PARTIES  TO  SHIT — SURCHARGING  AND  FALSIFYING 
ACCOUNTS ACT  OF  1845,  CH.  367 APPEAL.] 

TRUSTEES  under  a  deed,  one  of  the  trusts  of  which  was,  that  after  satisfying 
the  purposes  of  the  deed,  viz.  the  payment  of  the  debts  of  the  grantor,  the 
residue  of  the  property  should  be  held  for  the  use  of  the  grantor,  were  also 
appointed  his  trustees  under  the  insolvent  laws  ;  and,  acting  in  this  dou- 
ble capacity,  transferred  certain  stocks  belonging  to  the  grantor  (the  com- 
plainant) to  the  defendant.  All  his  debts  having  been  paid,  and  the  trustees 
directed  by  a  decree  of  this  court  to  convey  to  him  all  the  property  they  had 
not  disposed  of  in  performance  of  their  duty  as  trustees  in  insolvency  :  it  was 
HELD — 

That  the  complainant  was  entitled  to  maintain  a  bill  for  the  recovery  of  the 
stock  from  the  defendant,  upon  the  ground,  that  the  transfer  had  been  im- 
properly obtained ;  and,  that  the  trustees  were  not  necessary  parties  to  such 
suit. 

Where  an  agreement  was  made  to  settle  a  claim  presented  to  the  complainant, 
in  the  form  of  a  stated  account,  which,  without  examination,  was  assumed 
to  be  correct,  the  complainant  will  be  allowed  to  surcharge  and  falsify  such 


WILLIAMS  VS.  SAVAGE  MANUFACTURING  CO.  307 

account,  to  the  extent  of  the  errors  specified  in  his  bill,  independently  of  the 
question  of  fraud,  actual  or  constructive. 

The  court  is  to  take  the  account,  as  stated,  and  the  onus  probandi  is  upon  the 
party  having  liberty  to  surcharge  and  falsify  ;  and  he  will  be  restricted  to 
proof  of  errors  specified  in  his  bill. 

When  the  accounts  upon  which  the  settlement  was  based,  were  presented  to 
the  complainant,  he  was  deprived  of  much  of  his  mental  capacity,  and  inca- 
pable of  giving  them  that  examination  which  was  indispensable  to  their  full 
comprehension.  HELD — 

That  under  these  circumstances,  it  was  the  duty  of  the  court,  if  errors  were 
pointed  out,  to  permit  the  plaintiff  to  surcharge  and  falsify  the  accounts, 
though  the  settlement  based  upon  them  was  regarded  as  a  family  settlement, 
which  the  court  will  usually  uphold  with  a  strong  hand. 

A  party  having  elected  to  examine  witnesses  upon  their  voir  dire,  is  precluded 
from  resorting  to  any  other  mode  to  show  their  interest  in  the  event  of  the 
suit. 

An  appeal  and  a  bond  to  prosecute  the  appeal,  will  not,  under  the  act  of  1845, 
ch.  367,  independently  of  the  direction  of  the  court,  delay  the  execution  of 
the  order  appealed  from. 

Whether  such  direction  shall  or  shall  not  be  given,  is  referred  by  the  legisla- 
ture to  the  sound  discretion  of  the  court,  upon  a  view  of  all  the  circumstances 
of  the  case. 

[The  facts  of  this  case  are  fully  stated  in  the  Chancellor's 
opinion :] 

THE  CHANCELLOR: 

This  cause,  which  has  been  argued  with  an  ability  every  way 
worthy  the  eminent  counsel  engaged  in  it,  has  received  the  most 
deliberate  consideration  of  the  court.  It  is  justly  regarded  as 
one  of  much  importance,  not  only  with  reference  to  the  influ- 
ence which  the  decision  may  have  upon  the  pecuniary  interests 
of  the  parties  ;  but  on  account  of  the  questions  which  have 
been  discussed  so  elaborately,  and,  which  derive  additional 
importance  from  the  relations  which  the  parties  really  concerned 
in  the  controversy  bear  to  each  other. 

It  appears  from  the  pleadings  and  proofs,  that  by  an  act 
passed  by  the  legislature  of  this  state,  at  December  session, 
1821,  ch.  201,  the  defendant  was  incorporated  by  the  name  of 
the  Savage  Manufacturing  Company,  for  the  purpose  of  man- 
ufacturing and  vending  of  cotton  goods,  and  the  carrying  on  of 
any  other  branches  of  manufacture  in  their  discretion  ;  for  which 


308  HIGH  COURT  OF  CHANCERY. 

purpose  they  were  authorized  to  purchase  and  hold  land  in  fee 
simple  or  otherwise,  not  exceeding  three  hundred  acres  at  a  time, 
and  to  erect  thereon,  all  necessary  buildings,  with  a  capital  of 
one  hundred  and  fifty  thousand  dollars,  divided  into  fifteen  hun- 
dred shares,  of  one  hundred  dollars  each. 

That  the  company  organized  soon  after  the  date  of  the  char- 
ter, and  went  into  operation  ;  the  complainant  at  or  about  that 
time,  becoming  their  agent  at  its  manufacturing  establishment, 
on  the  little  Patuxent  River,  in  Anne  Arundel  County — that 
this  agency  was  continued  from  that  time,  until  the  6th  of  July, 
1839,  when  he  tendered  his  resignation,  which  was  accepted, 
and  his  brother,  Cumberland  D.  Williams,  was  appointed  in 
his  stead. 

The  bill  alleges,  that  in  June,  1839,  the  complainant  became 
afflicted  with  sickness,  which  entirely  disqualified  him  from  at- 
tending to  business  of  any  kind,   and  that  he  remained  in  this 
condition  until  the  fall  of  1844,  when  he  was  restored  to  health 
in  mind  and  body — that  of  the  capital  stock  of  the  company, 
which  amounted  to  $108,100,  the  sum  of  $37,632  32  stood  on 
its  books  in  the  name  of  the  complainant,  and  that  his  property, 
including  this  stock,  at  the  commencement  of  his  sickness,  was 
probably  worth  over  and  above  all  his  just  debts,  about  $35,000 
— that  in  this  condition  of  his  mental   and  bodily  health,  his 
brothers,  George  Williams,  Cumberland  D.  Williams,  and  Na- 
thaniel D.  Williams,   addressed  his,  the  complainant's  son-in- 
law,  a  letter  upon  the  subject  of  making  a  will,  to  prevent  his 
property  from  passing  out  of  his  family,  but  being  disappointed 
in  their  views  in  this  respect,  by  his  refusal  or  neglect  to  com- 
ply with  their  suggestions,   they,  the  brothers,  determined  to 
destroy  that  which  they  could  not  obtain,  and  reduced  the  com- 
plainant to  poverty,  by  the  means  and  instrumentalities  which 
the  bill  then  proceeds  to  point  out — these  consisted,  as  set  forth 
in  the  bill,  in  instigating  his  creditors  to  sue  him,  and  in  a  suit 
which  the  Savage  Manufacturing  Company  instituted  against 
him   for  an  alleged  indebtedness  ;  the  company  at  that  time 
being  altogether  controlled  by  his  brother,  George  and  Nathaniel 
— that  in  consequence  of  these  proceedings,  thus  instigated  by 


WILLIAMS  VS.  SAVAGE  MANUFACTURING  CO.  309 

his  said  brothers,  and  at  the  suggestion  of  one  of  them,  he,  in 
April,  1843,  petitioned  for  the  benefit  of  the  insolvent  laws,  and 
obtained  his  discharge  in  August,  of  the  same  year — that  from 
that  time  until  early  in  the  year,  1844,  he  remained  undisturbed 
by  his  creditors,  but  that,  in  the  year  1844,  Nathaniel  Williams, 
who  had  promoted  the  suit  of  the  company,  and  which  had 
been  referred  to  counsel,  began  to  press  the  settlement  of  that 
claim  and  by  the  contrivances  which  the  bill  details,  succeeded 
in  obtaining  in  satisfaction  of  this  pretended  claim  a  transfer  of 
the  stock  of  the  complainant  in  the  company  to  the  amount  of 
$9632  32. 

That  the  settlement,  by  which  a  transfer  of  this  stock  was 
obtained,  was  founded  upon  accounts,  one  of  which  was  pre- 
pared by  Cumberland  D.  Williams,  in  concert  with  his  brothers, 
Nathaniel  and  George,  and  the  other  by  a  clerk  of  said  George, 
who  prepared  the  same  under  the  direction  of  his  employer. 

The  bill  charges,  that  these  accounts  were  false  in  many 
particulars,  and  known  to  the  framers  thereof  to  be  such,  and 
are,  therefore,  fraudulent  in  fact,  and  in  contemplation  of  this 
court,  and  then  proceeds  to  surcharge  and  falsify  the  same  in 
some  of  the  most  important  items. 

The  complainant  further  alleges,  that  when  restored  to  health, 
bodily  and  mentally,  in  the  fall  of  1844,  he  found  himself,  who 
had  fallen  sick  worth  about  $35,000,  an  insolvent  debtor,  and, 
that  the  active  and  prominent  agents  in  reducing  him  to  this 
condition,  were  his  brothers,  George  and  Nathaniel,  who, 
during  his  state  of  imbecility,  had  put  the  machinery  in  opera- 
tion to  accomplish  his  ruin. 

That  after  the  institution  of  the  first  suit  against  him,  to 
wit,  on  the  15th  of  September,  1840,  the  complainant,  at  the 
suggestion  of  his  brother,  Nathaniel  Williams,  executed  a  deed 
of  trust  of  all  his  property  to  Charles  F.  Mayer,  Esq.,  and  his 
(the  complainant's)  son-in-law,  George  W.  Burnap,  and,  that 
the  provisions  of  that  deed,  which  will  be  noticed  hereafter, 
were  advised  by  the  said  Nathaniel. 

That,  the  claim  set  up  by  the  company,  against  the  com- 
plainant, and,  which  had  been  exhibited  by  his  said  brother, 


310  HIGH   COURT  OF   CHANCERY. 

was  stated  to  be  $7685  98,  to  which  his  said  brother,  acting 
for  the  company,  had  undertaken,  upon  the  pretence,  that  he, 
the  complainant,  had,  in  some  respect,  violated  his  duty  to- 
wards said  company,  of  his  own  motion,  without  foundation, 
proof,  or  authority,  to  mulct  him  in  the  sum  of  near  $2000 
and  that  swelled  the  amount  which  it  was  pretended  he  owed 
the  company,  to  the  sum  of  $9632  32 — that  influenced  by  the 
representations  made  him  by  the  said  Nathaniel,  and  incapable 
of  the  mental  effort  necessary  to  look  into  his  own  concerns, 
the  complainant  united  with  his  trustees,  in  transferring  to  the 
company,  that  amount  of  his  stock  on  the  20th  of  July,  1844, 
in  settlement  of  said  pretended  claim  against  him,  which,  by 
the  merger  of  so  much  of  the  stock,  reduced  the  capital  of  the 
company  by  that  amount. 

The  bill,  then,  after  particularly  pointing  out  the  alleged  er- 
rors in  the  accounts  of  the  company  against  the  complainant, 
and  averring,  that  upon  a  true  and  fair  settlement,  there  would 
be  found  a  balance  due  him,  alleges,  that  his  said  brothers, 
George  and  Nathaniel,  well  knew  that  said  accounts  had  been 
improperly  adjusted,  and  that  he,  the  complainant,  was  induced 
by  solicitations  and  menaces,  which  in  his  enfeebled  state  of 
health  he  was  incapable  of  resisting,  to  transfer  stock  in  said 
company  at  the  par  value  thereof,  in  satisfaction  of  said  pre- 
tended balance ;  and  the  prayer  is,  that  said  settled  account  may 
be  opened,  and  that  the  complainant  may  be  permitted  to  sur- 
charge and  falsify  the  same,  as  well  in  the  particulars  men- 
tioned as  in  all  others  which  may  be  made  apparent  in  the  pro- 
gress of  the  cause — that  an  account  may  be  taken,  and  that  if 
anything  shall  be  found  due  from  the  company,  they  may  be 
required  to  pay  the  same — and  that  if  the  complainant  shall  be 
found  to  be  indebted  to  the  defendant,  the  former,  upon  the 
payment  of  the  same,  shall  be  declared  entitled  to  a  re-transfer 
of  his  stock,  and  for  general  relief. 

These  seem  to  be  the  material  allegations  of  the  bill,  filed 
with  which,  as  exhibits,  are  the  accounts  upon  which  the  settle- 
ment is  charged  to  have  been  based,  with  another  exhibit  pre- 
pared according  to  the  complainant's  view,  by  which  one  of 


WILLIAMS  VS.  SAVAGE  MANUFACTURING  CO.  31 1 

the  accounts,  upon  which  the  settlement  is  alleged  to  have  been 
founded,  is  so  essentially  altered,  that  instead  of  showing  a 
balance  due  from  the  complainant  to  the  company  of  $5302  55, 
there  seems  to  be  due  from  the  latter  to  the  former,  the  sum  of 
$3274  34. 

It  appeared  also,  that,  upon  the  application  of  the  complain- 
ant for  the  benefit  of  the  insolvent  laws  in  1843,  Messrs.  Mayer 
and  Burnap,  the  trustees  named  in  the  conventional  deed  of 
1840,  were  appointed  and  qualified  as  his  permanent  trustees  ; 
and  it  also  appeared,  and  was  so  charged,  that,  prior  to  the 
filing  of  the  bill  in  this  case,  the  complainant  filed  his  bill 
against  the  said  parties  as  his  permanent  trustees,  alleging  that 
all  his  debts  were  paid,  and  praying  that  his  said  trustees, 
might  be  directed  to  release  and  reconvey  to  him  all  the  prop- 
erty vested  in  them,  by  deed  or  operation  of  law,  and  his  ap- 
plication for  the  benefit  of  the  insolvent  laws,  except  such  parts 
f  of  said  property  as  may  have  been  conveyed  or  transferred  by 
said  trustees  in  the  execution  of  their  office.  And  the  Chan- 
cellor, on  the  llth  of  December,  1845,  passed  his  decree,  by 
which,  the  said  Mayer  and  Burnap,  as  permanent  trustees, 
were  directed  to  convey  to  the  complainant,  all  the  property  of 
every  description,  which  had  not  been  disposed  of  or  otherwise 
affected  by  said  trustees,  in  the  performance  of  their  duty  as 
trustees  under  said  insolvent  laws. 

The  answer  of  the  company  denied,  in  very  explicit  terms, 
the  various  charges  of  fraud  and  imposition  alleged  in  the  bill, 
and  gave  a  full  detail  and  vindication  of  the  several  items  in  the 
accounts  which  had  been  assailed ;  giving  the  detail  and  ex- 
planation, however,  under  a  protest  that  it  was  not  necessary 
for  the  purposes  of  the  defence,  and  only  because  the  answer, 
if  such  explanations  were  omitted,  might,  in  that  respect,  be 
deemed  short — the  ground  taken  in  the  answer,  being,  "that 
the  agreement  was  not  based  on  any  audit  or  statement  of  ac- 
counts, between  the  complainant  and  respondent,  or,  in  any 
asserted  ascertainment  of  claims  against  the  complainant ;  it 
being  intended  to  be,  and  being  in  fact,  a  compromise  of  all 
disputes  as  appears  upon  the  face  of  the  agreement. 


312  HIGH  COURT  OF  CHANCERY. 

Beside  expressly  denying  the  charges  of  fraud,  defending  the 
items  of  claim  impeached  by  the  bill,  and  placing  the  defence 
of  the  settlement,  upon  the  ground  of  compromise  ;  the  answer 
presents  various  other  objections  to  the  relief  sought  by  the 
bill,  or  to  any  relief  being  granted  this  plaintiff,  which  will  be 
briefly  noticed  hereafter. 

The  case  of  Farnamvs.  Brooks,  9  Pick.,  212,  has  been  very 
much  pressed  by  the  counsel  on  both  sides,  as  establishing 
principles  important  to  the  views  which  each  has  attempted  to 
maintain.  That  appears  to  have  been  the  case  of  a  compromise 
of  unsettled  accounts  between  the  parties,  by  which  a  smaller 
sum  was  received  in  satisfaction  of  the  debt  than  the  sum  sub- 
sequently ascertained  to  be  due  ;  and  yet,  although  the  court 
decided,  expressly,  that  the  charge  of  fraud  was  not  made  out, 
they  permitted  the  plaintiff  to  surcharge  and  falsify  the  account 
on  which  the  settlement  was  made.  The  sum  agreed  to  be  re- 
ceived in  satisfaction  in  that  case,  was  $60,000 ;  and  that 
amount  was  fixed  upon,  upon  a  statement  of  the  account,  as 
prepared  by  the  defendant,  by  which  it  appeared,  that  the  sum 
actually  due,  was  $64,000,  on  payment  of  which,  the  intestate 
of  the  plaintiff  gave  to  the  defendant  a  receipt  in  full,  and  a 
transfer  of  all  his  interest  in  the  concern  in  which  they  were 
partners,  in  relation  to  the  business  of  which  the  accounts  were 
stated.  It  subsequently  appeared,  upon  a  more  careful  exam- 
ination of  the  account,  that  the  sum  really  due  was  $68,000, 
growing  out  of  errors,  in  omitting  sums  which  ought  to  have 
been  credited,  and  charging  others  which  ought  not  to  have 
been  debited,  and  upon  this  ground,  and,  notwithstanding,  the 
court  expressly  declared,  "that  these  errors  furnished  no  ground 
of  suspicion  of  unfairness  or  fraud,"  the  plaintiff  was  permitted 
to  surcharge  and  falsify  the  account  on  which  the  settlement 
was  made,  although  nearly  twenty  years  had  elapsed  from  the 
date  of  the  settlement  to  the  filing  of  the  bill. 

That  case,  in  many  of  its  features,  will  be  found  to  bear  a 
close  resemblance  to  the  present ;  and,  I  am  much  mistaken, 
if  the  doctrines  established  by  it  with  so  much  ability  and  learn- 
ing, will  not  justify  the  order  which  will  be  passed  in  this  case. 


WILLIAMS  VS.  SAVAGE  MANUFACTURING  CO.  313 

My  opinion,  therefore,  upon  this  part  of  the  case  is,  that 
though  the  settlement  will  not  be  set  aside  as  fraudulent,  the 
plaintiff  should  be  allowed  to  surcharge  and  falsify  the  account 
upon  which,  as  I  think,  it  was  made  ;  and  the  next  question  is, 
to  what  extent  has  he  succeeded  in  proving  the  errors  specified 
in  his  bill,  for  to  these  he  must  be  restricted.  2  Daniels'  Ch. 
Pr.,  765. 

The  court  is  to  take  the  account  as  it  is  stated,  and  the  onus 
probandi  is  upon  the  party  having  liberty  to  surcharge  and  fals- 
ify. If  he  can  show  an  omission,  he  may  surcharge  ;  and  if  a 
wrong  charge  is  made  against  him  in  the  account,  it  will  be 
stricken  out,  which  is  a  falsification. 

To  what  extent,  then,  has  the  plaintiff  succeeded  in  pointing 
out  errors  of  either  description  in  the  account,  is  the  question. 
It  is  first  alleged,  that  in  the  account  between  the   Savage 
Rail  Road  Company  and  the  defendant,   which  is  one  of  the 
elements  of  the  account  1. 1.,  upon  which  the  statement  was 
made,  the  defendant  was  prejudiced  by  allowing  him  dividends 
only  on  the  amount  of  the  stock  held  by  him  in  the  rail  road 
company,  which  was  $12,000,  instead  of  on  the  whole  capital 
of  $15,000.     My  opinion  upon  this  is,  that  as  that  account 
was  stated,  the  whole  dividends  should  have  been  credited.     It 
is  an  account  between  the  two  companies,  and  not  between  the 
complainant,  as  a  stockholder  in  the  rail  road  company,  and  the 
defendant.     The  road  is  charged  with  all  the  advances  made  to 
it  by  the  defendant,  and  not  with  such  proportion  thereof  as 
would  correspond  with  the  complainant's  interest  in  the  road. 
Surely,  if  the  complainant  is  considered  the  sole  proprietor  of 
the  road,  so  far  as  to  charge  him  with  all  advances  to   it,  he 
should  be  regarded  in  the  same  light  with  reference  to  credits. 
I  am  not  satisfied,  however,  that  the  defendant  continued  to 
use  the  road  to  the  1st  of  July,  1843,  as  alleged  in  the  bill. 
The  answer  expressly  denies  it ;    and  the  proof  offered  in  oppo- 
sition to  the  answer  I  do  not  deem  sufficient.     The  account, 
therefore,  in  this  respect  will  stand,  unless  further  and  fuller 
proof  shall  be  introduced. 

The  charge  of  ten  per  cent,  on  the  cash  balances  cannot  be 
VOL  i.— 27 


314  HIGH   COURT  OF  CHANCERY. 

supported.  It  by  no  means  follows,  that  because  tolls  are  paid 
at  the  rate  of  ten  per  cent,  on  the  capital  stock,  that,  therefore, 
it  would  be  just  to  charge  the  road  ten  per  cent,  on  cash  bal- 
ances due  from  it.  Out  of  the  tolls  the  expenses  of  the  road 
are  to  be  paid  ;  and  it  may  very  well  happen,  that  when  they 
are  defrayed,  much  less  than  six  per  cent,  would  remain  for  the 
stockholders. 

I  do  not  think  the  charge  in  the  same  account  of  $1,350,  can 
be  supported.  That  sum  appears  to  me,  from  the  evidence,  to 
have  been  placed  in  the  hands  of  the  complainant,  as  the  agent 
of  Patrick  T.  Jackson,  mentioned  in  the  receipt  of  C.  D.  Wil- 
liams, of  the  19th  of  September,  1828. 

It  also  appears  to  me,  that  the  sum  of  $1,350,  charged  to  the 
complainant  in  the  account  marked  I.  I.,  is  identical  with  the 
sum  charged  in  the  rail  road  account,  and  is  thus  twice  charged, 
when,  as  I  think,  from  the  proof  now  before  me,  it  should  not 
have  been  charged  at  all. 

With  regard  to  the  sum  of  $2,353  33,  charged  to  the  com- 
plainant in  the  account  I.  I.,  being  for  money,  the  property  of 
the  defendant,  paid  by  the  complainant,,  in  the  purchase  of  land 
from  Mr.  Herbert  and  Mr.  Worthington,  the  plaintiff  has  not 
succeeded  in  satisfying  me  that  the  charge  is  erroneous. 

It  is  very  clear,  I  think,  that  even  if  the  charter  of  the  Sav- 
age Manufacturing  Company  authorized  them  to  purchase  and 
hold  these  lands,  that  the  mode  in  which  the  complainant,  ac- 
cording to  his  own  showing,  procured  the  assent  of  the  stock- 
holders, conferred  upon  him  no  power  thus  to  use  the  corpo- 
rate funds.  And,  moreover,  when  the  complainant  petitioned 
for  the  benefit  of  the  insolvent  laws,  in  the  spring  of  1843,  he 
returned  Mr.  Worthington,  as  one  of  his  creditors,  for  lands 
purchased.  Now,  although  this  was  at  a  period  prior  to  the 
full  restoration  of  the  complainant  to  health,  in  mind  and  body, 
and  although  I  am  pursuaded,  that  his  mind  was  at  that  time 
enfeebled,  and,  perhaps,  unfitted  to  investigate  and  understand 
accounts  of  a  complicated  nature  ;  yet,  I  am  far  from  thinking 
he  could  not  comprehend  the  simple  proposition,  whether  this 
debt  due  Mr.  Worthington,  was  due  from  him  or  from  the  Sav- 
age Factory. 


WILLIAMS  VS.  SAVAGE  MANUFACTURING  CO.  315 

Something  was  said  in  the  argument  about  the  land  which 
was  purchased  from  Herbert,  having  been  conveyed  to  Mr. 
Lansdale,  and  one  of  the  defendant's  exhibits  does  show,  that 
on  the  28th  of  November,  1843,  a  parcel  of  land  was  conveyed 
to  Lansdale  by  Herbert  and  wife,  for  the  sum  of  $4,755  25. 
It  does  not  appear,  however,  that  the  land  mentioned  in  this 
conveyance  is  the  same  with  that  on  account  of  which  the 
money  charged  in  the  account  was  paid  by  the  complainant. 
And,  moreover,  the  money  charged  in  the  account  is  charged 
as  of  the  1st  of  June,  1839,  four  years  and  more  before  the  deed 
to  Lansdale  ;  and,  I  do  not  understand  from  the  bill,  that  the 
objection  to  the  charge  is  put  upon  the  ground,  that  the  pur- 
chase was  made  by,  and  the  conveyance  made  to,  Lansdale. 
The  ground  taken  in  the  bill  is,  that  these  lands  were  purchased 
"with  the  concurrence  and  under  the  direction  of  the  stock- 
holders owning  more  than  a  major  part  of  all  the  stock  of  the 
company." 

As  to  the  sum  of  $590,  for  which  the  complainant  claims  a 
credit,  it  seems  to  me,  some  further  explanations  should  be  of- 
fered, before  it  is  allowed  as  such. 

I  do  not  think  the  complainant  can  be  charged  with  any  part 
of  the  money  expended  in  erecting  the  furnace.  It  was  erect- 
ed on  the  grounds  of  the  defendant;  and  there  is  such  a  mass 
of  proof  going  to  show  that  it  was  treated  and  considered  as 
the  property  of  the  company,  by  its  agents  and  shareholders, 
that  I  do  not  see  how  it  can  be  resisted.  It  would  occupy 
much  time  and  space  to  refer  particularly  to  this  evidence  ;  and 
I,  therefore,  only  advert  to  the  depositions  of  Messrs.  Gordon, 
Todhunter  and  Patterson,  and  to  the  complainant's  exhibit,  be- 
ing a  statement  of  the  expenditures  of  the  Savage  Manufactur- 
ing Company,  in  which  the  cost  of  this  furnace  is  put  down  at 
$8000,  as  conclusive  to  show  that  this  expenditure  was  regard- 
ed as  a  company  expenditure,  and  the  furnace  as  company 
property. 

As  respects  the  alleged  credits  to  which  the  complainant 
claims  to  be  entitled,  and  for  the  omission  to  give  which  he 
seeks  to  surcharge  the  account,  I  am  of  opinion,  that  looking 


316  HIGH    COURT  OF    CHANCERY. 

to'the  evidence  of  Mr.  Capron  and  Mr.  Lansdale  upon  this 
point,  that  the  complainant  is  entitled  to  be  credited  at  the  rate 
of  $300  per  annum,  for  entertaining  the  proprietors  and  others 
at  the  factory,  during  the  period  he  lived  there  as  its  agent,  or 
rather,  from  the  1st  of  July,  1832,  to  July,  1839.  The  agree- 
ment under  date  the  16th  of  October,  1832,  says,  expressly, 
that  he  shall  be  indemnified  for  this  expense,  and  the  witness 
referred  to  proves,  that  $300  per  annum  would  be  no  more  than 
a  reasonable  allowance  therefor. 

The  complainant's  salary,  however,  cannot  be  credited  to  a 
period  subsequent  to  the  6th  of  July,  1839,  when  he  resigned, 
as  shown  by  a  letter  of  that  date;  and,  I  can  see  no  ground 
upon  which  he  can  be  allowed  a  higher  rate  of  compensation, 
as  agent,  than  $1000  a  year — that  being  the  sum  named  in  the 
agreement  of  October,  1822,  signed  by  the  complainant  and  the 
proprietors. 

These  are  all  the  items  of  surcharge  and  falsification  speci- 
fied in  the  pleadings,  and  to  these  the  parties  must  be  confined. 
The  case  will,  therefore,  go  to  the  Auditor,  with  directions  to 
state  an  account  accordingly,  preparatory  to  a  final  decree. 
The  settlement  itself  must  stand,  because  I  do  not  think  the 
charge  of  fraud  is  established,  and  such  a  decree  will  be  passed, 
when  the  account  comes  to  be  stated,  as  the  justice  of  the  case 
may  require. 

I  do  not  think  the  exceptions  to  the  evidence  of  Benjamin 
Williams,  Joseph  B.  Williams  and  George  H.  Williams  have 
been  sustained,  assuming  them  to  be  legatees  under  the  will  of 
Mrs.  Weld.  The  plaintiff  examined  them  upon  the  voir  dire, 
and  they  denied  any  interest  in  the  event  of  the  suit ;  and  hav- 
ing elected  to  take  this  course,  I  think  he  is  precluded  from  re- 
sorting to  any  other  mode  to  show  their  interest.  This  doc- 
trine, I  think,  is  established  by  the  passages  referred  to  in  1 
Greenleafon  Evidence ;  and  also  by  authorities  collected  in 
the  Notes  to  1  Starkie  on  Evidence,  page  124.  The  excep- 
tions to  the  evidence  of  George  Williams  and  Nathaniel  Wil- 
liams, I  do  not  undertand  to  be  much  insisted  on,  and  certain- 
ly, I  can  see  no  ground  upon  which  they  can  be  excluded. 


WILLIAMS  VS.  SAVAGE  MANUFACTURING  CO.  317 

I  do  not  find  it  necessary  to  go  in  detail  over  the  exceptions 
which  the  counsel  in  this  case,  on  each  side,  have  placed  upon 
the  record,  to  much  of  the  evidence  which  has  been  offered 
upon  either  side  ;  and  I  deem  it  enough  to  say,  that  my  con- 
clusions upon  the  whole  case,  are  founded  upon  proof  which  I 
think  admissible  and  competent,  and  that  I  have  very  carefully 
read  and  examined  it  all. 

The  settlement,  which  it  was  the  leading  object  of  this  bill 
to  vacate,  bears  date  on  the  1st  of  June,  1844.  It  was  signed 
by  a  number  of  shareholders  in  the  Savage  Manufacturing 
Company,  and  by  the  complainant,  and  Mayer  and  Burnap,  his 
trustees. 

The  language  of  the  agreement  is :  that  the  proprietors  of 
the  Savage  Manufacturing  Company,  on  the  one  part,  and 
Amos  A.  Williams  and  the  trustees  of  his  estate,  on  the  other 
part,  do  mutually  agree  to  settle  and  adjust  all  claims  and  de- 
mands between  them,  on  the  following  terms,  to  wit :  It  then 
provides  for  a  release  of  him  and  his  estate  from  all  claims  and 
demands  of  every  kind,  owing  by  him  or  his  estate  to  the  com- 
pany, who  engages  to  pay  a  debt  due  from  him  to  Richard  H. 
Waters  ;  and  the  said  complainant  and  his  trustees,  besides 
other  stipulations  on  their  part,  agree  to  assign  and  transfer 
unto  the  Savage  Manufacturing  Company,  by  a  transfer  on  their 
books,  bearing  even  date  with  these  presents,  stock  in  said 
company  representing  $9,632  32,  and  in  consideration  of  the 
premises,  the  parties  agree  that  all  accounts  between  them, 
from  the  beginning  of  the  world  unto  this  day,  be  deemed  finally 
settled,  and  all  claims  and  demands  mutually  released  and  dis- 
charged. 

This  agreement,  though  dated  on  the  1st  of  June,  1844,  is 
said  not  to  have  been  consummated  by  the  signatures  of  the 
requisite  number  of  shareholders,  until  the  20th  of  July  follow- 
ing, on  which  day  Amos  A.  Williams,  and  Burnap  and  Mayer, 
in  their  capacity  of  trustees,  under  the  conventional  deed  of  the 
complainant,  and  as  his  permanent  trustees  in  insolvency,  trans- 
ferred to  the  defendant,  conformably  with  the  preceding  agree- 
ment, on  the  books  of  the  company,  shares  and  an  interest  rep- 
27* 


318  HIGH  COURT  OF  CHANCERY. 

resenting  the  sum  of  $9,632  32,  and  on  the  same  day,  made 
similar  transfers  to  Martha  Weld  and  Nancy  W.  Burnap,  to  the 
former,  to  the  amount  of  $2,100,  at  par,  and  to  the  latter,  (who 
was  the  wife  of  Burnap,  one  of  the  trustees,)  to  the  amount  of 
$14,000,  at  par. 

The  deed  which  was  executed  by  the  complainant  to  Messrs. 
Mayer  and  Burnap,  on  the  15th  of  September,  1840,  was, 
among  others,  upon  the  trust  that  the  trustees  should  be  author- 
ized "to  adjust  and  settle  with  the  corporation  called  the  Sav- 
age Manufacturing  Company,  all  the  accounts  between  said 
Amos  and  said  corporation  ;  and  in  the  event  of  any  amount 
upon  such  adjustment  appearing  to  be  due  by  said  Amos  to  said 
corporation,  said  trustees  may  agree  with  said  corporation  for 
the  satisfaction  of  said  liability,  by  surrender  or  transfer  to  said 
corporation  of  such  number  of  shares  of  said  Amos  of  said  cap- 
ital stock,  and  such  diminution  or  abatement  of  his  interest  in 
the  said  stock,  or  the  property  of  the  said  corporation,  as  to 
said  trustees  may  appear  proper."  And  there  was  a  further 
trust  providing  for  the  settlement  of  the  claims  of  those  to  whom 
the  said  Amos  might  be  indebted,  on  account  of  the  purchases 
of  lands,  by  conveying  the  same  to  the  parties  to  whom  the 
money  might  be  due. 

Apart  from  the  merits  of  the  case,  as  disclosed  by  the  plead- 
ings and  proofs,  several  questions  of  law  have  been  discussedr 
and  particularly  it  is  insisted  by  the  defendant,  that  whatever 
may  be  thought  of  the  transaction  in  question,  and  though  the 
settlement  assailed  by  the  bill  might  be  obnoxious  to  objection, 
if  impeached  by  the  trustees,  Mayer  and  Burnap,  that  still,  upon 
this  bill,  and  upon  the  plaintiff's  own  showing,  he  can  have  no 
relief,  because  he  has  failed  to  show  a  title  in  himself  to  the 
stock,  a  re-transfer  of  which  is  sought.  The  ground  of  this 
objection  is,  that  the  whole  property  of  the  complainant  having 
been  vested  in  the  trustees,  Mayer  and  Burnap,  by  the  conven- 
tional deed,  and  by  operation  of  the  insolvent  laws,  and  it  ap- 
pearing by  the  bill  and  the  decree  of  the  Chancellor,  of  Decem- 
ber, 1845,  that  the  re-conveyance  ordered  by  that  decree,  did 
not  extend  to  property  which  the  trustees  had  parted  with,  in 


WILLIAMS  VS.  SAVAGE  MANUFACTURING  CO.  319 

the  execution  of  their  duty  as  such  trustees  in  insolvency,  and 
as  the  trustees  had,  in  that  capacity,  transferred  this  stock  to 
the  defendant,  it  follows,  that  the  plaintiff,  by  his  own  show- 
ing, has  no  title,  and  this  objection  to  the  bill  is  taken  by  ex- 
ception. 

There  is  apparently  much  force  in  the  objection,  but,  in  my 
opinion,  it  is  not  fatal  to  the  plaintiff's  case,  if  in  other  respects 
he  has  established  his  title  to  the  aid  of  the  court. 

One  of  the  trusts  of  the  deed  of  September,  1840,  is,  that 
after  satisfying  the  purposes  of  the  deed,  which  were  the  pay- 
ment of  the  creditors  of  the  grantor,  the  residue  of  the  property, 
or  its  proceeds,  was  to  be  held  for  the  use  of  the  said  grantor, 
his  executors,  &c.;  and  it  very  distinctly  appears  by  the  bill  in 
this  case,  and  by  the  proceedings  in  the  case  which  led  to  the 
decree  of  December,  1845,  and  by  that  decree,  that  all  the  debts 
of  the  grantor  have  been  paid  and  satisfied,  and  if  this  state- 
ment be  true,  it  follows,  of  course,  that  the  title  to  this  stock  in 
equity  should  be  in  the  complainant,  if  he  has  succeeded  in 
showing  that  it  was  improperly  transferred  to  the  defendant. 

It  is  said,  however,  that  the  right  to  recover,'if  any  such  right 
exists,  is  in  Mayer  and  Burnap,  the  trustees,  and  that  they  are 
the  parties  who  should  have  demanded  the  re-transfer,  the  legal 
title  being  alleged  to  be  in  them,  unless  it  has  been  transferred 
to  the  defendant.  But  the  legal  title  which  had  been  in  these 
trustees  was  unquestionably  vested  in  the  defendant,  by  the 
transfer  of  1844  ;  that  transfer  was  made  by  those  gentlemen 
in  the  double  capacity  of  conventional  trustees,  and  trustees  in 
insolvency,  and,  therefore,  if  no  relief  can  be  had  by  a  re-trans- 
fer, except  upon  the  footing  of  a  legal  title,  the  trustees,  Mayer 
and  Burnap  are  as  powerless  as  the  present  complainant.  My 
opinion  upon  this  question  is,  that  as  it  is  charged  in  the  bill 
that  the  purposes  of  the  trust  have  been  accomplished  by  the 
payment  of  the  debts  of  the  complainant,  and  as  upon  that  event 
he  was  entitled  to  a  re-conveyance  from  his  trustees  in  insol- 
vency, which  has  been  decreed  him,  and  as  under  the  voluntary 
deed,  the  residue  after  the  payment  of  his  debts,  was  to  be  held 
in  trust  for  him,  he  is  now  entitled  to  maintain  this  bill  against 


320  HIGH  COURT  OF  CHANCERY. 

the  present  defendant,  to  whom  the  trustees  transferred  the  legal 
title  to  the  property  in  dispute. 

I  can  see  no  sufficient  reason  why  the  court  should  first  de- 
cree a  transfer  of  this  stock  to  the  trustees,  that  they  might  then 
immediately  afterward,  be  compelled  to  transfer  it  to  the  com- 
plainant. The  legal  title  is  in  the  defendant,  and  if  that  legal 
title  has  been  improperly  obtained,  the  defendant  should  be  re- 
quired to  convey  at  once,  and  without  circuity,  to  the  party  ul- 
timately entitled. 

Nor,  do  I  think,  that  the  trustees,  Mayer  and  Burnap,  were 
necessary  parties,  as  is  also  insisted  by  the  defendant.  They 
have,  as  I  think,  no  interest  in  the  suit,  and  against  them,  if 
before  the  court,  no  decree  could  be  had,  and  consequently  they 
cannot  be  considered  necessary  parties.  Story's  Eg.  PL,  sec., 
231 ;  Smith  vs.  Snow  et  al.,  3;  Mad.  Rep.,  13. 

Considering,  then,  that  the  plaintiff  has  a  standing  in  court, 
to  ask  for  relief  in  respect  to  the  transactions  spoken  of  in  the 
bill,  if  he  has  shown  himself  entitled  upon  the  merits,  it  be- 
comes necessary  to  examine  the  case  upon  its  merits,  and  this 
will  be  done  as  briefly  as  possible. 

The  bill,  as  we  have  seen,  prays  that  the  settlement  of  June, 
1844,  may  be  opened,  upon  the  ground  of  fraud,  and  that  the 
complainant  may  be  permitted  to  surcharge  and  falsify  the  ac- 
count in  the  particulars  mentioned,  and  in  such  others  as  may 
become  apparent  in  the  progress  of  the  cause. 

The  allegation  is,  that  the  stated  account  was  fraudulent  in 
fact,  and  in  contemplation  of  law,  and  known  to  the  framers 
thereof  to  be  such. 

In  the  argument,  however,  the  Chancellor  understood  that 
the  charge  of  fraud  in  fact  was,  if  not  abandoned,  at  least  not 
pressed,  and  the  aid  of  the  court  was  asked  upon  the  ground 
that  this  settlement,  under  the  peculiar  circumstances  attending 
it,  though  not  characterized  by  fraud  in  fact,  that  is,  by  a  pre- 
conceived and  concerted  design  to  defraud  the  complainant, 
was  yet  in  contemplation  of  a  court  of  equity,  constructively 
fraudulent,  and  equally  invalid  as  if  contaminated  with  pre- 


WILLIAMS  VS.  SAVAGE  MANUFACTURING-  CO.  321 

meditated  fraud,  or  at  any  rate  the  errors  to  the  prejudice  of  the 
plaintiff,  charged  to  exist  in  the  account  upon  which  the  settle- 
ment is  alleged  to  have  been  based,  entitled  the  plaintiff  to  per- 
mission to  surcharge  and  falsify  it. 

With  regard  to  the  charge  of  fraud  in  fact,  which  charge  in 
the  bill  is  especially  directed  against  Nathaniel  Williams  and 
George  Williams,  I  am  altogether  convinced  that  it  is  destitute 
of  foundation.  So  far  as  George  Williams  is  concerned,  it  is 
perfectly  obvious,  if  any  confidence  is  to  be  placed  in  human 
testimony,  that  he  was,  from  the  beginning,  and  continually  to 
the  conclusion  of  this  whole  transaction,  most  vehemently  op- 
posed to  the  settlement — the  record  is  so  full  of  evidence  on 
this  point,  that  it  is  impossible  to  entertain  a  doubt  upon  the 
subject. 

With  respect  to  Nathaniel  Williams,  though  it  was  chiefly 
through  his  agency  that  the  settlement  was  effected,  I  do  not 
think  a  reasonable  suspicion  can  be  entertained,  but  that  he 
honestly  believed,  whatever  the  fact  may  turn  out  to  be,  that 
his  brother,  the  complainant,  was  indebted  to  the  defendant  in 
at  least  the  sum  agreed  upon.  The  bill  charges,  that  when  the 
brothers,  George,  Cumberland  and  Nathaniel,  were  frustrated 
in  their  design  to  secure  to  themselves  the  property  of  the  com- 
plainant, by  procuring  him  to  execute  a  will,  they  formed  the 
design  to  destroy  that  which  they  could  not  obtain,  and  that 
having  first  instigated  his  creditors  to  sue  him,  Nathaniel  sug- 
gested that  he  should  convey  his  property  in  trust  to  Messrs. 
Mayer  and  Burnap.  Now,  when  it  is  recollected,  that  Mr. 
Mayer  was  the  counsel  of  the  complainant,  and  Mr.  Burnap  his 
son-in-law,  it  appears  to  me  that  the  advice  that  they  should  be 
appointed  his  trustees,  infers  any  thing  else  than  a  design  to 
take  advantage  of  him.  But,  without  going  into  details,  which 
would  be  tedious  and  unprofitable,  I  content  myself  with  say- 
ing, that  upon  a  careful  examination  of  all  the  evidence,  I  do 
not  see  a  single  circumstance  upon  which,  fairly  construed,  the 
charge  of  fraud  against  Nathaniel  Williams  can  be  supported. 

I,  therefore,  dismiss  the  charge  of  fraud  in  fact,  which,  as  it 
is  never  to  be  presumed  in  any  case,  certainly  should  not,  in  a 


322  HIGH  COURT  OF  CHANCE llf. 

case  like  this,  be  inferred  upon  any  but  the  strongest  evidence. 
I  do  not,  however,  place  my  conviction  of  its  non-existence  in 
this  case  upon  the  ground  that  as  between  parties,  bearing  the 
relations  to  each  other  which  these  parties  do,  more  stringent 
evidence  will  be  required  to  establish  fraud  than  in  an  ordinary 
case,  but  upon  the  higher  ground,  that  however  Mr.  Williams 
may  have  been  mistaken  as  to  the  actual  state  of  the  accounts 
between  his  brother  and  the  company,  nothing  was  farther  from 
his  intention,  as  I  am  satisfied,  than  to  impose  upon  him  to  the 
extent  of  a  dollar.  It  is  quite  obvious  that  he  carried  through 
the  settlement  in  defiance  of  the  strong  resistance  of  those  who 
had  better  opportunities  than  himself  of  knowing  how  the  ac- 
counts stood,  and  that  at  one  period,  the  immediate  family  of 
the  complainant,  so  far  from  complaining  of  him  for  his  efforts 
to  effectuate  the  settlement,  were  dissatisfied  with  the  parties 
who  made  opposition  to  it. 

It  is  next  to  be  considered  whether  this  settlement  was  made 
under  such  circumstances  of  error  and  mistake,  as  to  render  it 
constructively  fraudulent,  and  this  question  is  supposed  to  de- 
pend upon  whether  it  was  based  upon  a  statement  of  accounts, 
or,  according  to  the  ground  taken  in  the  answer,  it  was  a  com- 
promise of  conflicting  and  unascertained  claims,  preferred  by 
the  defendant  against  the  plaintiff.  If  the  latter,  that  is,  if  it 
was  a  compromise  of  claims  of  this  description,  it  is  insisted  it 
can  only  be  impeached  upon  the  ground  of  actual  fraud . 

Upon  a  very  careful  investigation  of  the  evidence,  my  mind 
is  brought  to  the  conclusion,  that  the  accounts  procured  by  Na- 
thaniel Williams  from  George  Williams,  were  the  basis  upon 
which  the'  settlement  was  made — that  Mr.  Mayer,  and  Mr. 
Mayhew,  who  was  consulted  as  a  friend,  assented  to  the  terms 
proposed,  upon  the  assumption  that  these  accounts  were  cor- 
rect, and  that,  but  for  that  assumption,  they  would  not  have 
advised  the  settlement.  I  do  not,  therefore,  regard  the  settle- 
ment as  a  mere  compromise,  but  as  an  agreement  to  settle,  in 
the  mode  proposed,  a  claim  which  was  presented  in  the  form 
of  a  stated  account,  which,  without  examination,  was  assumed 
to  be  correct.  This  is  certainly  true  with  regard  to  the  account 


WILLIAMS  VS.  SAVAGE  MANUFACTURING  CO.  323 

marked  J.  J.,  to  which,  as  the  evidence  shows,  a  portion  of 
the  claim  called  the  furnace  account  was  added,  to  make  up  the 
amount  at  which  the  whole  claim  was  settled. 

Now,  I  cannot  see  how  it  can  be  said,  at  least  that  the  ac- 
count marked  J.  J.  did  not  furnish  the  basis  of  the  settlement — 
and  if  this  be  so,  then  it  follows,  that  independently  of  the  ques- 
tion of  fraud,  actual  or  constructive,  the  plaintiff  will  be  allowed 
to  surcharge  and  falsify  it,  to  the  extent  of  the  errors  specified 
in  his  bill.  1  Story1 s  Eq.  sec.,  523 ;  1  Daniell's  Ch.  Pr.,  761, 
765;  Barrow  vs.  Rhinelander,  1  Johns.  Ch.  Rep.,  550. 

There  is  a  circumstance  connected  with  this  case,  which, 
though  it  does  not,  in  my  judgment,  invalidate  the  whole  settle- 
ment, and  induce  me  to  set  it  aside  altogether,  is  yet,  I  think, 
entitled  to  great  weight  upon  the  question  of  allowing  the  plain- 
tiff to  surcharge  and  falsify  the  account.  There  seems  to  me  no 
doubt  that  the  plaintiff,  for  a  considerable  period,  extending, 
probably,  from  the  year  1839,  to  the  fall  of  1844,  was,  though 
not  perhaps  actually  non  compos  mentis,  deprived  of  much  of 
the  mental  capacity  which  he  had  before  possessed.  No  man, 
I  think,  can  read  this  record,  and  not  come  to  this  conclusion, 
and  I  cannot  but  persuade  myself,  that  in  his  condition,  when 
these  accounts  were  presented  to  him,  he  was  incapable  of  giv- 
ing them  that  examination  which  was  indispensable  to  their  full 
comprehension.  His  mind  had  lost  much  of  its  vigor,  and  pain- 
fully sympathised  with  the  infirmity  to  which  his  physical  na- 
ture was  a  prey.  The  complainant  then,  as  I  think,  was  una- 
ble to  understand  these  accounts,  and  the  trustees,  and  the 
friend  called  in,  did  not  examine  them — all  assuming  their  cor- 
rectness as  the  basis  of  the  agreement. 

Now,  I  feel  a  strong  conviction,  under  these  circumstances, 
that  even  regarding  this  settlement  as  a  family  arrangement, 
which  the  court  will  usually  uphold  with  a  strong  hand,  that 
still  it  is  its  duty,  if  errors  are  pointed  out,  to  permit  the  plain- 
tiff to  surcharge  and  falsify  the  account  on  which  the  settle- 
ment was  made.  This  course  seems  to  me  to  be  in  conformity 
with  the  doctrine  of  Mr.  Justice  Story,  in  the  1st  volume  of  his 
Equity  Jurisprudence,  sections  131,  132. 


324  HIGH  COURT  OF    CHANCERY. 

[The  defendant,  against  whom  the  order  was  passed  on  the 
22d  of  November  last,  in 'conformity  with  the  views  expressed 
by  the  Chancellor  in  his  opinion  of  that  date,  appealed,  and 
filed  an  appeal  bond  in  form  and  penalty,  and  with  condition 
and  sureties  approved  by  the  court.  The  order  appealed  from, 
however,  being  within  the  provisions  of  the  act  of  1845,  the 
appeal  bond  alone  does  not  operate  as  a  supersedeas,  and  the 
application  now  made,  is,  that  the  court  by  special  order,  stay 
the  execution  of  the  order  appealed  from. 

Upon  this  application  the  Chancellor  says  :] 

This  is  an  application  founded  upon  the  act  of  1845,  chap. 
367,  which  gives  the  right  of  appeal  from  the  decrees  and 
orders  of  the  equity  courts  of  this  state  in  a  class  of  cases  in 
which  the  right  did  not  exist  before. 

The  right  is  extended  to  decrees  or  orders,  determining  a 
question  of  right  between  the  parties,  and  directing  an  account 
to  be  stated  on  the  principles  of  the  determination,  with  a  pro- 
viso, that  appeals  taken  under  the  provisions  of  the  act,  shall 
not  delay  the  execution  of  the  decree  or  order,  unless  the  court 
passing  the  same  shall  so  direct ;  nor  unless  the  party  prosecut- 
ing the  appeal  shall  give  an  approved  appeal  bond. 

The  parties  have  been  heard  by  counsel  upon  this  applica- 
cation,  and  the  court  will,  as  briefly  as  possible,  state  the 
reasons  of  the  conclusions  to  which  a  careful  consideration  of 
the  circumstances  of  the  case  has  brought  it. 

This  is  understood  to  be  the  first  application  of  the  kind,  for 
though  several  appeals  have  been  prosecuted  under  the  act  of 
assembly,  and  the  proceedings  under  the  decrees  and  orders 
appealed  from,  have  been  suspended  until  decisions  were  had 
in  the  appellate  court,  this  appears  to  have  been  the  result  of 
agreement,  the  power  of  the  court  not  having  been  specially  in- 
voked in  any  instance  so  far  as  I  am  informed. 

In  England,  the  rule  appears  to  be  established^that  an  order 
for  a  re-hearing,  or  an  appeal,  will  not  stop  proceedings  under 
the  decree  or  order  appealed  from,  without  a  special  order.  3 
Daniell's  Pr.,  1611. 


WILLIAMS  VS.  SAVAGE  MANUFACTURING  CO.           325 

The  reverse,  however,  appears  to  be  the  case  in  New  York, 
where  an  appeal  does,  in  the  first  instance,  stay  proceedings 
on  the  point  appealed  from,  and,  if  the  party  obtaining  the 
decree  wishes  to  proceed,  notwithstanding  the  appeal,  he  must 
make  application  to  the  Chancellor  for  liberty  to  do  so.  Green 
vs.  Winter,  1  Johns.  Ch.  Rep.,  80,  81. 

It  does  not  appear  to  me,  however,  to  be  material  to  investi- 
gate very  minutely,  the  rule  in  England  or  elsewhere,  as  there 
can  be  no  doubt,  than  an  appeal  and  bond  to  prosecute  the 
appeal,  under  the  act  of  assembly  in  question,  will  not,  inde- 
pendently of  the  order  of  the  court,  delay  the  execution  of  the 
order  or  decree  appealed  from.  If  the  execution  of  the  decree 
or  order  is  to  be  suspended,  it  must  be  by  force  of  the  special 
direction  of  the  court  given  for  that  purpose.  Whether  such 
direction  shall  or  shall  not  be  given,  is  referred  by  the  legisla- 
ture to  the  sound  discretion  of  the  court,  upon  a  view  of  all  the 
circumstances  of  the  case.  If  the  court,  upon  consideration  of 
the  circumstances,  shall  think  that  greater  inconvenience  and 
injury  will  result  to  the  appellant  from  proceeding  to  execute 
the  order,  pending  the  appeal,  than  would  be  sustained  by  the 
opposite  party  by  delaying  it,  then  the  execution  should  be 
suspended,  if  otherwise,  the  execution  should  not  be  delayed. 

The  court,  in  this  case,  has  no  reason  to  think,  that  the  ap 
peal  has  been  taken  for  the  mere  purpose  of  delay  and  vexa- 
tion. The  case  is  one  of  much  importance  in  several  aspects, 
the  questions  interesting,  and  some  of  them  novel,  and  the 
order  of  the  court  appealed  from,  vital  to  at  least  some  of  the 
most  material  points  involved  in  the  cause,  and  upon  which  the 
defence  was  placed. 

It  was  the  undoubted  right  of  the  defendant,  to  appeal  from 
this  order,  and  this  court  certainly  feels  no  inclination  to  abridge 
the  right,  or  so  to  proceed  to  execute  its  order,  that  irreparable 
mischief  shall  be  inflicted,  if  the  order  upon  the  appeal  shall 
be  pronounced  erroneous. 

The  order  appealed  from,  in  this  case,  not  only  decides,  that 
the  settlement  of  1844,  was  founded  upon  the  basis  of  accounts 
between   the   parties,    contrary    to    the   defence    taken  in  the 
VOL.  i—28 


326  HIGH  COURT  OF  CHANCERY. 

answer,  but  it  gives  to  the  complainant,  leave  to  surcharge  and 
falsify  the  account  in  certain  particulars,  and  decides  defini- 
tively certain  points  in  difference,  which  must  change,  essen- 
tially, the  state  of  accounts  between  the  parties  ;  leaving  others 
open  for  further  evidence.  It  is  said  by  the  plaintiff,  that  an 
account  stated  upon  the  principles  of  the  order  in  question, 
will  entirely  shift  the  balance,  and  show  the  plaintiff  to  be  a 
creditor,  instead  of  a  debtor,  as  he  appeared  to  be,  to  a  large 
amount,  by  the  account  upon  which  the  settlement  was  made. 

It  is  not,  then,  an  order,  simply  determining  a  question  of 
right  between  the  parties,  and  directing  an  account  generally, 
as  in  the  case  of  Forbes  vs.  Forbes,  referred  to  in  the  argu- 
ment ;  but,  it  is  an  order,  determining  to  a  considerable  extent 
the  elements  of  which  the  account  shall  be  composed.  It  de- 
cides, that  the  complainant,  in  the  settlement  complained  of  in 
the  bill,  was  charged  with  several  sums  of  money  erroneously, 
which  of  course  are  to  be  struck  from  the  account,  and,  that 
he  should  be  credited  with  other  sums  which  were  not  credited. 
Upon  some  of  these  items  the  decision  is  final,  as  much  so  as 
if  the  Auditor  had  stated  an  account  in  conformity  with  the 
order,  and  his  account  had  been  ratified. 

This  order,  therefore,  differs  widely  from  an  order  simply 
rescinding  a  settlement  between  parties,  and  directing  an  ac- 
count upon  certain  legal  principles  declared  by  the  court,  leav- 
ing the  adjudication  of  every  thing  else  open  for  further  con- 
sideration. 

Upon  appeal  from  an  order  of  this  latter  character,  the  re- 
viewing court,  in  any  event,  whether  they  reverse  or  affirm  the 
order,  unless,  indeed,  they  dismiss  the  bill,  must  remand  the 
cause  to  this  court,  when  the  whole  question  of  the  account, 
should  an  account  be  ordered,  would  be  open  to  the  same  ex- 
tent as  before  the  appeal,  and  the  almost  inevitable  result 
would  be  a  second  appeal  after  the  account  should  be  taken 
and  affirmed.  This,  however,  is  not  likely  to  be  the  case  here, 
as  upon  reviewing  the  order  of  this  court,  the  Court  of  Appeals 
will  have  before  them  the  materials  for  putting  an  end  to  the 
controversy. 


WILLIAMS  VS.  SAVAGE  MANUFACTURING  CO.  327 

There  seems  to  me,  therefore,  to  be  much  more  propriety  in 
abstaining  from  proceeding  with  the  execution  of  such  an  order 
as  this,  than  an  order  which  though  it  may  determine  a  ques- 
tion of  right  between  the  parties,  as  by  vacating  a  deed  or 
settlement,  leaves  the  whole  question  of  the  account  open  for 
further  directions. 

There  are,  as  was  said  by  Chancellor  Kent,  in  Green  vs. 
Winter,  difficulties  in  laying  down  a  general  rule  in  such  cases. 
To  proceed  as  of  course  in  a  cause  pending  an  appeal,  might 
lead  to  a  great  deal  of  useless  labor  and  expense  to  the  parties, 
and  sometimes  to  irreparable  mischief,  and,  on  the  other  hand, 
to  permit  the  proceedings  to  be  stayed  in  every  case,  would 
render  a  chancery  suit  the  greatest  nuisance. 

It  seems  to  me,  that  to  proceed  with  the  execution  of  the 
order  appealed  from,  in  this  case,  pending  the  appeal,  might 
not  only  subject  the  parties  to  useless  labor  and  expense,  but 
might  be  productive  of  irreparable  mischief.  If  the  Court  of 
Appeals  should  differ  from  the  Chancellor,  either  with  regard 
to  the  character  of  the  settlement,  or  the  principles  upon  which 
the  account  should  be  stated,  or  in  his  conclusions  of  fact,  and 
the  order  of  this  court  shall,  in  the  meantime,  be  executed,  it 
is  manifest,  that  irreparable  injury  may  be  done,  because,  it 
may  be  impossible  to  restore  the  parties  to  the  situation  they 
previously  occupied,  or  repair  the  consequences  of  the  decree. 
It  is  said,  however,  that  the  defendant  may  obviate  these  con- 
sequences, by  appealing  from  the  final  decree,  and  filing  a  new 
appeal  bond.  But  this  would  involve  the  necessity  of  carrying 
two  voluminous  records  to  the  superior  court,  at  great  expense, 
and,  moreover,  though  the  defendant  has  now  been  able  to 
give  an  approved  bond,  in  a  penalty  sufficient  for  this  occasion, 
it  does  not  follow,  of  necessity,  that  when  the  final  decree  shall 
be  pronounced,  and  perhaps  a  larger  penalty  required,  that  a 
bond  with  adequate  names  can  be  given. 

I  feel  sensibly  the  argument  founded  upon  the  delay,  which 
the  judgment  I  have  formed  upon  this  motion  may  occasion. 
But,  looking  to  the  character  of  the  order  appealed  from,  the 
length  to  which  it  goes  in  determining  the  rights  of  the  parties, 


328  HIGH  COURT  OF  CHANCERY. 

the  consequences  which  may  result  from  its  enforcement,  if  the 
Court  of  Appeals  should  consider  it  materially  erroneous,  and 
furthermore,  seeing  that  as  the  record  will  be  presented  to  the 
appellate  court,  almost  every  question  of  law  and  fact,  involved 
in  the  cause,  may  be  finally  decided,  and  thus  the  delay  appre- 
hended essentially  shortened.  I  am  persuaded,  that  justice  re- 
quires that  the  execution  of  the  order  of  this  court,  passed  on 
the  22d  of  November  last,  shall  be  stayed,  pending  the  appeal, 
or  until  further  order.  It  is  thereupon  ordered,  that  the  exe- 
cution of  the  order  of  this  court,  passed  on  the  22d  of  Novem- 
ber, 1848,  be,  and  the  same  is  hereby,  stayed,  until  the  appeal 
from  said  order  shall  be  heard  and  decided  by  the  Court  of 
Appeals,  or  until  the  further  order  of  this  court  in  the  prem- 
ises. 

[The  first  order  in  this  cause  was  affirmed  on  appeal,  and  the 
cause  remanded  with  liberty  to  amend  the  pleadings.] 


THE  CHESAPEAKE  BANK 

vs.  J>     SEPTEMBER  TERM,  1848. 

McCLELLAN  AND  RABORG. 

[RIGHT  OF  APPEAL — OBJECTION  TO  TRUSTEE'S  SALE.] 

AN  appeal  will  lie  from  every  decision  which  settles  a  question  of  right  between 
the  parties,  no  matter  whether  the  decision  was  adverse,  or  by  consent  or 
default. 

The  right  to  appeal  for  the  mere  purpose  of  delay,  seems  to  be  recognised  by 
the  act  of  1832,  ch.  230,  which  directs  the  appellate  court  to  award  damages 
in  such  cases,  over  and  above  the  interest  allowed  by  law  on  the  judgment. 

Whether  an  appeal  will  lie  or  not,  in  any  given  case,  is  for  the  appellate  court, 
and  not  for  this  court,  to  decide;  it  being  a  question  relating  to  the  jurisdiction 
of  the  superior  tribunal,  and,  therefore,  for  it  alone  to  determine. 

An  objection  to  a  sale,  upon  the  ground  that  the  decree  under  which  it  was 
made  had  been  appealed  from,  and  an  approved  appeal  bond  filed,  of  which 
the  trustee,  prior  to  the  sale,  had  notice,  was  sustained  and  the  sale  set  aside. 

[In  this  case  a  decree  passed,  by  consent,  on  the  5th  of  July, 
1848,  for  the  sale  of  certain  mortgaged  premises,  unless  thede- 


CHESAPEAKE  BANK  VS.  McCLELLAN.        329 

fendants  should,  on  or  before  the  15th  of  the  same  month,  pay 
or  cause  to  be  paid,  to  the  complainant,  its  mortgage  debt, 
amounting  to  eight  hundred  and  fifty  dollars,  with  interest  there- 
on from  the  27th  of  January,  1847,  and  the  costs  of  this  cause. 
A  trustee  was  appointed  for  the  purpose  of  making  such  sale, 
and  qualified  by  giving  the  required  bond. 

He  then  proceeded  to  advertise  the  property,  after  the  expi- 
ration of  the  time  limited  for  the  payment  of  the  debt ;  but  be- 
fore the  day  of  sale,  on  the  8th  of  August,  1848,  the  defendants 
entered  an  appeal  from  the  decree,  and  filed  an  appeal  bond,  which 
was  approved  by  the  register  of  the  court,  as  authorized  by  the 
act  of  1826,  ch.  200,  sec.  5  ;  and,  it  appears,  by  the  report  of 
the  trustee,  that  there  was  exhibited  to  him,  on  the  day  of  sale, 
but  before  the  sale  took  place,  a  certificate  from  the  register  of 
the  fact  of  such  appeal  having  been  entered,  and  of  the  filing 
and  approvement  of  the  bond. 

The  trustee,  however,  acting  under  the  impression  that  no 
appeal  would  lie  from  a  decree,  by  consent,  proceeded  to  make 
the  sale  ;  and  having  reported  it,  and  exceptions  having  been 
filed  by  the  defendants  to  its  ratification,  upon  the  ground,  that 
the  appeal  and  bond  superseded  the  decree,  the  question  was 
submitted  to  the  court  upon  the  notes  of  the  solicitors. 

Upon  these  exceptions  the  Chancellor  says:] 

THE  CHANCELLOR  : 

The  trustee  maintains,  that  his  proceeding  in  the  matter  was 
regular,  because,  an  appeal  will  not  lie  from  a  decree,  by  con- 
sent, and  refers  to  some  observations  made  by  the  late  Chan- 
cellor, in  1  Bland,  12,  in  which  his  honor  does  say,  that  a  de- 
cree, passed  by  consent,  cannot  be  appealed  from  ;  but  this  po- 
sition appears  to  be  founded  upon  an  analogy  to  proceedings  at 
law,  which,  it  seems  to  me,  is  not  sanctioned  by  the  practice 
or  the  decisions  in  this  state.  The  remark  of  the  Chancellor 
is,  that  "as  at  common  law,  no  writ  of  error  will  lie  from  a  judg- 
ment by  default,  or  by  consent  ;  so  in  equity,  the  decree  or  or- 
der appealed  from  must  have  been  adverse,  and  not  made  by 
the  express  or  tacit  consent  of  the  appellant." 
28* 


330  HIGH  COURT  OF  CHANCERY. 

But,  in  the  case  of  Quynn  vs.  the  State,  Harr.  fy  Johns. ,  36, 
a  judgment,  by  confession,  was  taken  by  writ  of  error  to  the 
Court  of  Appeals,  and  the  record  was  not  only  retained,  but  the 
judgment  of  the  general  court  reversed  ;  and,  it  is  believed, 
that  the  practice  has  been  very  general  and  of  long  standing, 
to  take  before  the  appellate  court  judgments  and  decrees,  by  con- 
fession, and  by  default ;  and,  that  the  only  question  ever  made 
upon  the  subject  of  the  right  of  appeal,  has  had  reference,  not 
to  the  proceedings  which  led  to  the  decision  appealed  from, 
but  to  the  character  of  the  decision  itself — that  is,  whether  it 
settled  the  questions  of  right  between  the  parties.  If  it  did, 
the  appeal  has  been  entertained,  no  matter  whether  the  decision 
was  adverse,  or  by  consent  or  default. 

The  right  of  appeal,  for  the  mere  purpose  of  delay,  seems  to 
have  been  recognised  by  the  legislature,  by  the  act  of  1832, 
chapter  230 ;  for,  in  such  case,  the  court  is  directed  to  award 
damages,  over  and  above  the  interest  allowed  by  law  upon  the 
amount  of  the  judgment.  This  law,  though  it  imposes  a  pen- 
alty for  taking  a  case  before  the  Court  of  Appeals,  merely  for 
delay,  yet  appears  to  recognise  the  right,  subject  to  the  penal- 
ty, if,  upon  an  examination  of  the  record,  the  Court  of  Appeals 
should  think  it  proper  to  impose  it — that  is,  if  the  court  should 
think  delay  alone  was  the  object  of  the  appeal. 

But,  whether  an  appeal  will  lie  or  not,  in  any  given  case,  is 
for  the  appellate  court,  and  not  for  this  court,  to  decide  ;  it  be- 
ing a  question  relating  to  the  jurisdiction  of  the  superior  tribu- 
nal, and,  therefore,  for  it  alone  to  determine.  Thompson  vs. 
Me  Kim,  6  Harr.  fy  Johns.,  302  ;  Oliver  vs.  Palmer  and  Ham- 
ilton, 11  Gill  Sf  Johns.,  137. 

In  view  of  these  decisions  of  the  Court  of  Appeals,  it  would 
seem  impossible  to  contend,  that  this  court  would  be  justifiable 
in  affirming  a  sale,  made  under  the  authority  of  its  decree,  from 
which  an  appeal  had  been  taken,  and  for  the  prosecution  of 
which  appeal,  an  approved  bond  had  been  given.  The  sale, 
therefore,  must  be  set  aside. 


HARRISON  VS.  HARRISON.  331 

SAMUEL  HARRISON  -\ 

vs.  >     DECEMBER  TERM,  1848. 

ALEXANDER  B.  HARRISON  ET  AL.3 

[SALES  BY  TRUSTEES — OBJECTIONS  TO — STATUTE  OF  FRAUDS.] 

IT  is  the  well  understood  law  of  this  state,  that  in  sales  made  under  authority 
of  trustees  in  chancery,  the  court  is  the  vendor,  and  the  trustee  its  mere 
agent,  acting  under  a  specially  delegated  authority. 

Though  the  trustee  may  depart  from  the  special  directions  of  the  decree,  yet  a 
subsequent  ratification  by  the  court  would  render  a  sale  as  binding  and  valid, 
as  if  he  had  pursued,  in  all  respects,  those  directions. 

The  court,  in  confirming  the  acts  of  its  agents  who  have  not  followed  the  direc- 
tions given  them,  must  take  care  that  no  injustice  is  done  the  parties  inter- 
ested, and  that  they  have  an  opportunity  of  being  heard  before  their  rights 
are  decided  upon. 

It  is  not,  always,  a  valid  objection  to  the  confirmation  of  a  sale,  proved  to  have 
been  well  attended  and  fair  in  other  respects,  that  it  was  made  on  a  different 
day,  and  at  a  different  place  from  those  mentioned  in  the  advertisement. 

The  report  of  the  sale  by  the  trustee,  is  not  absolutely  necessary  to  perfect  the 
title  of  the  purchaser. 

It  may  well  be  doubted,  whether  sales  made  by  trustees  under  the  authority  of 
our  courts  of  equity,  are  within  the  statute  of  frauds. 

[Alexander  B.  Harrison,  trustee  under  a  decree  in  chancery, 
in  a  creditor's  suit,  to  sell  the  real  estate  of  John  Merchant,  de- 
ceased, made  sale  thereof  at  auction,  in  St.  Michaels,  Talbot 
county,  on  the  2d  of  May,  1829,  in  different  parcels,  and  re- 
ceived the  purchase  money  therefor,  but  died  without  having 
made  a  report  to  the  Chancellor.  The  sale,  as  appeared  by  the 
evidence,  was  well  attended,  and  the  prices  bid,  fair  and  rea- 
sonable. On  the  19th  of  May,  1848,  John  Perrine,  of  the  city 
of  Baltimore,  was,  on  the  petition  of  Joseph  Merchant  and 
others,  parties  defendants  in  the  cause,  appointed  trustee  to 
collect  the  purchase  money,  and  advertised  the  property  again. 
On  the  petition  of  Thomas  Keithby  and  others,  who  claimed  it 
as  purchasers,  or  through  purchasers  at  the  sale  made  in  1829, 
the  proceedings  of  the  trustee  were  suspended  by  order  of  the 
Chancellor.  Testimony  having  been  taken  to  prove  the  cir- 
cumstances attending  the  sale,  the  case  was  argued  on  the  sev- 
eral petitions  and  orders.  The  Chancellor  said,  that  the  follow- 


332  HIGH  COURT  OP  CHANCERY. 

ing  facts  were,  in  his  opinion,  satisfactorily  proved  :  That  a 
sale  was  made  by  the  trustee,  on  the  day  above  mentioned ; 
that  the  prices  given,  were  at  the  time,  fair  and  reasonable  ; 
that  it  was  public,  in  the  presence  of  a  considerable  number  of 
bidders  ;  that  there  was  competition  between  them  ;  that  the 
purchase  money  had  been  paid  to  the  trustee,  or  settled  for ;  and 
that  the  purchasers  of  those  claiming  under  them,  had  been  in 
possession  of  the  property  for  a  long  time,  and  had  made  im- 
provements thereon  to  some  extent.  There  was  no  proof  of  such 
an  agreement  between  the  trustee  and  the  purchasers  as,  if  it  had 
been  an  ordinary  sale,  would  have  taken  it  out  of  the  statute  of 
frauds.] 

THE  CHANCELLOR  : 

It  is  the  well  understood  law  of  this  state,  that  in  sales  made 
under  the  authority  of  decrees  in  chancery,  the  court  is  the  ven- 
dor, the  trustee  being  the  mere  agent  or  attorney  of  the  court, 
under  a  special  delegated  authority.  Andrews  vs.  Scotton,  2 
Bland,  629.  And  the  true  character  of  such  a  sale  is,  that  it  is 
a  transaction  between  the  court  and  the  purchaser,  and  a  pri- 
vate sale  as  well  as  a  public  sale  may  be  made,  if  the  court 
deem  it  advantageous.  And  after  setting  aside  the  sale  re- 
ported by  the  trustee,  as  formally  irregular,  the  court  may  re- 
vive the  terms  of  the  contract  with  the  same  purchaser,  if  no 
other  objections  existed,  and  those  terms  are  deemed  advanta- 
geous to  the  parties,  who  are  in  court  prepared  to  protect  their 
interests.  Such  is  the  language  of  the  Court  of  Appeals  in 
Glenn  vs.  Clapp,  11  G.  #  J.,  8,  9. 

Regarding  the  trustee  as  the  agent  of  the  court  in  making 
the  sale,  it  would  seem  to  follow  necessarily,  that  though  he 
may  depart  from  the  special  directions  of  his  principal,  and 
thus  exonerate  the  latter  from  the  obligation  to  confirm  his  act, 
yet,  if  he  thinks  proper  to  do  so,  the  act  of  the  agent  will  be  as 
binding  as  if  he  had  pursued,  in  all  respects,  those  directions. 
A  subsequent  ratification  of  the  act  having  the  same  effect,  as 
a  previous  authority. 

The  court,  it  is  true,  must  take  care,  in  confirming  the  acts 
of  its  agents  who  have  not  followed  the  directions  given  them, 


HARRISON  VS.  HARRISON.  333 

that  no  injustice  is  done  the  parties  interested ;  and  that  they 
have  an  opportunity  of  being  heard,  before  their  rights  are  de- 
cided upon.  But  if  after  this  is  done,  the  court  is  satisfied  that 
justice  requires  the  ratification  of  a  sale  made  by  a  trustee  of 
this  court,  there  is  no  principle  which  forbids  it,  though  the 
trustee  may  not  have  observed  those  formalities,  which  were 
prescribed  for  him. 

It  was  said  by  Chancellor  Hanson,  in  a  case  which  appears 
to  have  been  very  carefully  considered,  that  with  respect  to 
sales  made  under  the  authority  of  the  court,  he  thought  himself 
bound  to  act  as  if  the  property  were  his  own,  or  held  by  him  in 
trust ;  and  that  reasons  which  would  induce  him,  as  proprie- 
tor, or  trustee,  to  set  aside  a  sale  made  by  his  agent,  would  in- 
fluence him  as  Chancellor.  Lawson  vs.  the  State,  2  Bland,  641, 
note.  Whether  this  is  the  true  rule  or  not,  need  not  be  deter- 
mined here,  for  although  the  court  may  not  have  so  large  a  dis- 
cretion, in  repudiating  the  contract  of  its  agent,  as  is  suggested 
by  the  Chancellor  in  that  case,  it  may  be  safely  assumed,  I 
think,  that  though  its  agent  may  not  have  conformed  in  all  res- 
pects, to  the  regulations  prescribed  for  him  by  the  court,  it 
may,  nevertheless,  if  justice  to  all  parties  can  be  done,  ratify  his 
act. 

It  has  been  already  remarked,  that  the  sales  which  are  now 
impeached,  were  public,  and  fair,  and  that  the  terms  have  been 
complied  with  ;  and  hence  it  follows,  that  if  they  are  vacated, 
it  must  be  upon  grounds  exclusively  affecting  what  are  called 
the  model  arrangements,  by  which  the  trustee  was  to  be  gov- 
erned. 

The  first  objection  of  this  description  is,  that  the  sale  was 
not  made  at  the  time  and  place  mentioned  in  the  printed  adver- 
tisement, found  among  the  proceedings. 

The  time,  as  advertised,  was  the  21st  of  April,  1829,  and 
the  place  at  the  court-house  door,  in  Easton  ;  whereas  the  sales 
actually  made,  were  made  on  the  2d  of  May  following,  and  the 
place,  St.  Michaels.  It  is  in  proof,  however,  that  a  large  com- 
pany were  present,  and  it  may  reasonably,  I  think,  be  inferred, 
that  on  the  day  fixed  by  the  advertisement,  the  sale  for  some 


334  HIGH  COURT  OF  CHANCERY. 

sufficient  reason,  was  postponed,  and  that  notice  was  then  pub- 
licly given,  that  it  would  be  had  at  the  time  and  place  at  which 
it  was  actually  made  ;  and  when  it  is  recollected,  that  the  prop- 
erty lay  in  and  about  the  town  of  St.  Michaels,  the  policy  of 
such  change  of  place,  is  readily  seen. 

The  trustee  who  made  the  sale,  is  now  dead,  and .  nearly 
twenty  years  have  elapsed,  and  under  such  circumstances,  to 
require  of  the  purchasers,  who  have  complied,  and  paid  their 
money,  to  prove  by  positive  evidence,  a  compliance  by  the 
trustee  with  this  regulation,  would,  it  appears  to  me,  be  a  hard 
measure  of  justice.  The  court  may  presume  that  notice  was 
given,  and  indeed  when  the  proof  shows,  that  a  large  number 
of  persons  were  present,  such  a  presumption  can  scarcely  be 
avoided. 

Next  it  is  objected,  that  the  trustee  did  not  make  a  report  of 
his  sales,  as  directed  by  the  decree. 

But,  I  apprehend,  the  title  of  the  purchaser  cannot  depend 
absolutely  upon  the  performance  by  the  trustee,  of  this  part  of 
his  duty.  If  it  did,  it  is  obvious,  that  in  many  cases,  from 
death,  and  other  causes,  the  title  of  purchasers  might  be  defeat- 
ed. This  court  may,  I  think,  if  satisfactorily  convinced  that  a 
sale  has  been  made  by  its  agent,  though  that  agent  has  not  in- 
formed it,  in  the  mode  directed — that  is,  by  a  report — approve 
and  ratify  the  sale.  To  show  that  the  title  of  purchasers  are 
not  made  to  depend  upon  the  full  compliance  by  trustees  with 
their  duty  as  prescribed  by  the  decree,  the  case  of  Ramsay's 
estate  has  been  referred  to,  in  which  a  sale  was  ratified,  though 
the  trustee  gave  no  bond. 

In  addition  to  these  objections,  the  statute  of  frauds  has  been 
urged,  not  by  way  of  plea,  or  exception  to  the  sale,  made  in 
writing,  but  ore  tenus,  and  by  way  of  argument.  It  may,  I 
think,  upon  authority,  and  upon  principle,  be  very  well  doubted, 
whether  sales  made  by  trustees  under  the  authority  of  our  equi- 
ty courts,  are  within  the  statute  of  frauds.  In  2  Daniel's  Prac., 
752,  it  is  said,  that  sales  before  a  master  of  the  court,  under  a 
decree  or  order,  are  not  within  the  statute  of  frauds.  And,  in 
the  case  of  the  Attorney  General  vs.  Day,  Lord  Hardwicke  said, 


HARRISON  VS.  HARRISON.  335 

that  purchasers  before  the  master  are  certainly  out  of  the  stat- 
ute ;  and,  that  he  would  not  hesitate  carrying  the  purchase  into 
execution,  against  a  bidder  before  the  master,  without  subscrip- 
tion, after  confirmation  of  the  master's  report ;  the  judgment 
of  the  court  taking  it  out  of  the  statute.  Now,  if  the  judgment 
of  the  court,  confirming  the  master's  report,  will  take  the  case 
out  of  the  statute,  it  is  not  easy  to  perceive,  why  the  judgment 
of  the  court,  ratifying  the  sale,  though  not  reported  by  the  mas- 
ter, will  not  have  the  same  effect.  If  the  master's  report  is  not 
subscribed  by  the  bidder,  it  cannot  be  regarded  as  a  contract 
signed  by  him,  or  some  person  authorized  by  him.  If  the  re- 
port of  the  master,  though  not  subscribed  by  the  purchaser,  has 
been  considered  binding  upon  him — that  is,  as  having  been 
made  by  his  agent  duly  authorized,  then,  the  language  of  Lord 
Hardwicke — that  the  judgment  of  the  court  took  the  case  out 
of  the  statute — would  have  been  inappropriate  ;  because,  the 
requisition  of  the  statute  being  already  complied  with,  by  the 
report  of  the  master,  there  could  be  no  necessity  for  any  judg- 
ment, to  relieve  the  case  from  the  operation  of  the  statute. 

Sales  of  land,  by  sheriffs,  have  been  decided  in  this  state,  to 
be  within  the  statute  of  frauds.  Barney  vs.  Patterson,  6  H. .  Sf 
J.,  172.  But,  the  essential  points  of  difference  between  sales 
so  made,  and  the  character  and  authority  of  the  sheriff  and  of 
trustees  appointed  by  this  court,  are  fully  and  clearly  stated  by 
my  predecessor,  in  Andrews  vs.  Scotton,  2  Bland,  636. 
These  differences  are  so  many  and  material,  that  it  is  impossi- 
ble, with  safety,  to  apply  any  one  principle  to  them  both. 
But,  the  vital  difference,  perhaps,  with  reference  to  the  ques- 
tion now  under  consideration,  is,  that  the  sheriff's  sale,  if  made 
conformably  to  law,  is  final  and  valid,  and  passes  the  title  ; 
whereas,  chancery  sales,  the  court  being  the  vendor,  are 
not  binding  and  conclusive  until  approved  and  ratified  by  the 
court. 

It  is  not,  however,  necessary  in  this  case  to  decide  the  broad 
question,  whether  the  sales  are  or  are  not  within  the  statute  of 
frauds,  for  one  or  two  reasons.  In  the  first  place,  the  statute 
is  not  pleaded  at  all,  by  any  one,  but  only  relied  upon  ore  tenus. 


336  HIGH  COURT  OF  CHANCERY. 

and  in  argument.  In  the  next,  the  objection  is  made,  not  by  a 
party  to  the  contract,  it  being  between  the  court  on  the  one  side, 
and  the  vendees  on  the  other,  but,  by  the  heirs  of  the  party 
whose  lands  the  court  had  decreed  should  be  sold — the  right  of 
whom  to  interfere  in  this  way  may  well  be  doubted.  And,  in 
the  third  place,  this  contract  of  sale  having  been  performed  by 
the  payment  of  the  purchase  money,  and  delivery  of  possession 
is  taken  entirely  without  the  statute,  and  must  be  carried  into 
full  execution. 

If  other  reasons  were  required  for  confirming  these  sales,  they 
would  be  found  in  the  great  length  of  time  which  has  elapsed 
since  they  were  made,  and  the  other  attending  circumstances 
of  the  case. 

They  were  made  in  1829,  and  it  was  not  until  the  year  1847, 
after  the  death  of  the  trustee,  that  any  attempt  was  made  to  dis- 
turb the  title  of  the  purchasers,  and  then,  only  by  affirming  that 
the  purchase  money  had  not  been  paid. 

Some  of  the  parties  now  urging  objections,  were  parties  to  the 
cause  in  which  the  decree  passed,  and  must,  therefore,  be  pre- 
sumed to  have  had  some  knowledge  of  it.  And,  in  view  of  the 
public  manner  in  which  the  property  was  sold,  and  the  large 
company  present  upon  the  occasion,  it  is  difficult  to  believe 
they  did  not  know  of  the  sale.  It  was  quite  as  much  their  du- 
ty as  the  duty  of  the  purchasers,  to  require  the  trustee  to  make 
his  report,  and  it  can  scarcely  be  doubted  they  would  have 
done  so,  if  they  had  not  known  that  the  creditors  of  their  an- 
cestor would  take  the  whole  purchase  money. 

The  purchasers  received  the  'trustees'  deed,  and  after  this 
lapse  of  time,  it  would  be  a  severe  measure  of  justice  to  re- 
quire them  to  show  that  every  formal  prerequisite  had  been 
complied  with,  especially,  in  favor  of  parties  who  have  for  so 
long  a  time  slept  upon  their  rights. 

[The  order  in  this  case  was  affirmed  on  appeal.] 


HAYS  VS.  HENRY.  337 


ELIZABETH  HAYS 

vs.  ^»     DECEMBER  TERM,  1848. 

CHARLOTTE  HENRY  ET  AL. 

[WIFE'S    RIGHT    TO    PERSONALTY FRAUDULENT    CONVEYANCES.] 

IT  is  not  in  the  power  of  a  husband  in  this  state,  by  will,  to  deprive  his  widow 
of  that  portion  of  his  personal  estate,  to  which  she  is  entitled  by  law. 

Yet,  there  can  be  no  doubt  of  his  right  to  dispose,  absolutely,  of  this  description 
of  property  during  his  life,  independently  of  the  concurrence  and  exonerated 
from  any  claim  of  the  wife  ;  provided,  the  transaction  be  not  colorable  mere- 
ly, and  be  unattended  with  circumstances,  indicative  of  fraud  upon  the  rights 
of  the  wife. 

One  of  the  badges  of  fraud  in  such  cases,  is  the  retention  of  the  possession  of 
the  property  by  the  husband,  after  the  transfer  of  the  title,  or  keeping  the 
deed  in  his  hands  after  its  execution. 

It  being  proved,  that  the  husband,  with  a  design  to  deprive  his  widow  of  her 
share  of  his  personal  estate,  executed  the  conveyances  in  question,  but  did 
not  part  with  the  possession,  but  lived  upon  and  enjoyed  the  property  until 
his  death — the  deeds  were  set  aside  as  frauds  upon  the  rights  of  the  wife. 


[This  case  was  removed  from  the  equity  side  of  Baltimore 
County  Court.  The  bill  filed  by  the  widow  of  Simeon  Hays, 
stated,  that  he  died  in  the  year  1847  ;  that  he  had  for  upwards 
of  twenty  years  previous  cohabited  with  Charlotte  Henry,  by 
whom  he  had  two  children  ;  that  he  also  had  two  children  by 
the  complainant ;  that  on  the  2d  of  April,  1844,  having  con- 
verted certain  of  his  estate  into  money,  the  said  Hays  bought 
with  it  a  house  and  lot  in  Baltimore,  subject  to  a  ground  rent, 
and  caused  it  to  be  conveyed  to  said  Charlotte,  who,  on  the  9th 
of  the  same  month  conveyed  it  to  him,  in  trust,  for  her  use 
during  her  life,  with  remainder  to  their  two  children,  and,  in 
case  said  children  died  without  issue,  to  the  two  children  of  the 
complainant ;  that  both  deeds  were  recorded  on  the  same  day  ; 
that  Hays  had  always  treated  the  property  as  his  own  ;  and, 
that  the  conveyances  were  made  solely  for  the  purpose  of  pre- 
venting any  of  his  property  from  going  to  his  wife,  the  com- 
plainant, at  his  death.  It  was  further  stated,  that  letters  of 
administration  on  his  estate  had  been  granted  to  the  complain- 
ant, and,  that  if  the  property  in  question,  were  decreed  to  be  a 
VOL.  i—29 


338  HIGH   COURT  OF    CHANCERY. 

part  of  Hays'  estate,  there  would  be  more  than  sufficient  to  pay 
all  his  debts,  and  the  expenses  of  administration  ;  and  prayed 
that  such  a  decree  might  pass,  and,  that  she  might  be  per- 
mitted to  receive  a  third  of  the  residue. 

The  answer  of  Charlotte  Henry,  stated,  that  the  property 
had  been  bought  with  her  money  ;  and,  denied  that  the  deceas- 
ed had  exercised  such  acts  of  ownership  over  it,  as  were  in- 
consistent with  the  nature  of  the  trust ;  and  further  denied  the 
complainant's  right  to  bring  her  title  in  question,  in  the  man- 
ner attempted.  A  commission  to  take  testimony  was  subse- 
quently issued  and  returned,  the  nature  and  effect  of  the  evi- 
dence taken  under  which,  will  appear  from  the  Chancellor's 
opinion  :] 

THE  CHANCELLOR: 

It  has  been  conceded  in  this  case,  and  certainly  it  could  not 
be  disputed,  since  the  decisions  in  Griffith  vs.  Griffith,  Ex^rs., 
4  Harr.  #  McHenry,  101  ;  and  Coomes  vs.  Clements,  &th  Harr. 
fy  Johns.,  480,  that  it  is  not  in  the  power  of  a  husband  in 
Maryland,  by  will  to  deprive  his  widow  of  that  portion  of  his 
personal  estate  to  which  she  is  entitled  by  law ;  the  amount 
of  the  share  depending  upon  circumstances,  being  one-third  or 
one-half,  according  to  those  circumstances.  This  has  been  the 
settled  and  unquestionable  law  in  this  state,  since  the  decision 
of  the  cases  referred  to. 

But,  although  the  husband  is  not  permitted  to  deprive  his 
wife  of  her  reasonable  share  of  his  personal  estate  by  will,  there 
can  be  no  doubt  of  his  power  to  dispose  absolutely  of  this 
description  of  property  during  his  life,  independently  of  the 
concurrence,  and  exonerated  from  any  claim  of  the  wife,  pro- 
vided the  transaction  is  not  merely  colorable,  and  be  unattend- 
ed with  circumstances  indicative  of  fraud  upon  the  rights  of 
the  wife.  If  the  disposition  by  the  husband  be  bona  fide,  and 
no  right  is  reserved  to  him,  then,  though  made  to  defeat  the 
claim  of  the  wife,  it  will  be  good  against  her,  because,  as  was 
observed  in  the  argument,  an  act  cannot  be  denounced  as  fraudu- 
lent which  the  law  authorizes  to  be  done. 


HAYS  VS.  HENRY.  339 

But  if  it  be  a  mere  device  or  contrivance,  by  which  the  hus- 
band, not  parting  with  the  absolute  dominion  over  the  property 
during  his  life,  seeks,  at  his  death,  to  deny  his  widow  that  share 
of  his  personal  estate  which  the  law  assigns  to  her,  then  it  will 
be  ineffectual  against  her. 

One  of  the  badges  of  fraud  in  such  cases,  is  the  retention  of 
the  possession  of  the  property  by  the  husband,  after  the  transfer 
of  the  title,  or  keeping  the  deed  in  his  hands  after  its  execu- 
tion. Smith  vs.  Fellows,  2  Atkinson,  62,  377. 

In  Hall  vs.  Hall,  2  Vernon,  276,  the  court  said,  if  goods 
are  absolutely  given  away  in  his  lifetime,  this  will  stand  good 
against  the  custom  (under  which  the  wife  claimed.)  But  if  he 
has  it  in  his  power,  as  by  keeping  of  the  deed,  &c.,  or  if  he  re- 
tains the  possession  of  the  goods,  or  any  part  of  them,  this  will 
be  a  fraud  upon  the  custom,  and  of  course  will  not  prevail 
against  the  claim  of  the  wife. 

In  2  Roper,  on  Husband  and  Wife,  pages  17  and  18,  the 
author,  after  reviewing  the  cases,  lays  down  this  rule  as  the  true 
one  to  be  extracted  from  them  ;  that,  if  the  act  (of  alienation) 
be  accompanied  with  the  delivery  of  the  property,  and  every 
thing  is  done,  (so  far  as  it  can  be,)  before  the  husband's  death 
intestate,  to  give  effect  to  the  transaction,  and  there  is  no 
reservation,  and  the  husband  divests  himself  of  all  interest  in 
the  property,  then  the  act  will  be  necessarily  valid,  as  a  due 
exercise  of  his  admitted  right  whilst  life  remained,  to  dispose 
of  his  property  in  bar  of  the  custom. 

It  is,  therefore,  very  material  in  this  case  to  ascertain 
whether  Hays,  the  husband  of  the  complainant,  did  part  with 
the  possession  of  the  property  in  question. 

That  it  was  purchased  by  him,  and  paid  for  with  his  money, 
I  entertain  no  doubt ;  and,  I  am  persuaded,  that  the  utmost  in- 
genuity will  in  vain  seek  to  create  a  doubt  upon  the  subject 
in  opposition  to  the  mass  of  evidence  to  be  found  in  the  re- 
cord. 

It  was  purchased  of  Mr.  Ferine,  and  by  that  gentleman,  on 
the  2d  April,  1844,  conveyed  to  the  defendant,  Charlotte 
Henry,  by  the  direction,  as  may  be  inferred  from  the  proof,  of 


340  HIGH    COURT  OF    CHANCERY. 

Simeon  Hays.  A  few  days  afterwards,  to  wit,  on  the  9th  of 
the  same  month,  Charlotte  Henry,  conveyed  the  same  property 
to  Simeon  Hays,  upon  the  trusts  in  said  deed  expressed. 
These  two  deeds  were  enrolled  on  the  same  day,  and  the  in- 
ference is  a  very  natural  and  fair  one,  that  they  are  parts  and 
parcels  of  the  same  transaction  ;  and,  were  intended  to  con- 
summate a  purpose  contemplated  when  the  purchase  was  made. 
That  purpose,  I  am  fully  convinced,  was  to  deprive  the  com- 
plainant, the  widow  of  Hays,  of  her  share  of  her  husband's 
estate.  This  purpose,  there  is  no  doubt,  could  have  been  ac- 
complished by  an  absolute  and  unconditional  alienation  of  the 
property  by  sale  or  gift ;  and,  although  such  alienation  was 
made  with  the  intent  imputed  to  this  act,  it  would  not  vitiate 
it,  provided  there  was  a  transfer  of  the  possession  as  well  as 
the  title,  and  no  reservation,  whatever,  to  the  husband. 

But,  in  this  case,  Hays  did  not  part  with  the  possession. 
On  the  contrary,  Mr.  Coates  stated,  that  Hays  bought  the 
property  in  question,  lived  in  it,  and  died  in  it. 

There  is,  moreover,  in  the  assignment  of  the  lease  by  Char- 
lotte Henry  to  Hays,  a  provision  which  seems  to  have  been 
designed  to  secure  him  in  the  possession  of  the  property  during 
his  life.  The  language  of  the  covenant  is,  "that  he  shall 
peaceably  and  quietly  have,  hold,  use,  occupy,  possess  and  en- 
joy, the  said  piece  of  ground  and  premises,"  &c.,  "without 
the  let,  suit,  molestation,  interruption,  eviction  or  disturbance 
of  the  said  Charlotte  Henry,"  &c. 

It  is  true,  in  the  declaration  of  the  trust,  it  is  said,  that  the 
property  shall  be  held  by  him,  for  the  sole  use  and  benefit  of 
the  said  Charlotte  Henry,  during  her  life,  &c.,  and  after  her 
death,  in  trust,  for  the  benefit  of  her  children,  with  a  limitation 
over  in  the  event  of  their  death  without  issue,  for  the  use  of  the 
children  of  Hays  by  the  complainant ;  and,  therefore,  it  is  con- 
tended, that  he  took  no  beneficial  interest  under  the  assign- 
ment, being  a  mere  depository  of  the  naked  legal  title.  But 
still,  the  legal  title  was  conveyed  to  Hays,  with  a  covenant 
that  he  should  have  possession,  and  the  proof  shows,  that  he 
did  in  fact,  retain  the  possession  and  use  down  to  the  period  of 
his  death  in  1847. 


HAYS  VS.   HENRY.  341 

The  inference,  therefore,  I  think,  is  very  strong,  not  to  say 
conclusive,  that  these  deeds  were  the  result  of  a  contrivance, 
invented  and  put  in  execution,  to  deprive  the  complainant  of 
that  portion  of  the  personal  estate  of  her  husband,  to  which  by 
law  she  became  entitled,  unless  bona  fide  and  absolutely  sold, 
or  given  away  by  him  in  his  lifetime. 

If  Hays  intended  to  make  a  complete  and  unreserved  dis- 
position of  the  property,  why  was  the  deed  of  trust  of  the  9th 
of  April  executed  at  all  ? 

Charlotte  Henry  was  perfectly  competent  to  hold  the  title 
and  deal  with  the  property  as  she  might  think  fit,  and,  there- 
fore, it  is  not  easy  to  imagine  a  reason  for  the  execution  of  the 
trust  deed,  unless  it  was  the  design  of  the  parties  to  secure  to 
Hays  a  control  during  his  life. 

There  is  another  provision  in  this  trust  deed,  which  I  think 
is  worthy  of  consideration  in  determining  upon  its  character, 
and  upon  the  influence  which  Hays  exerted  over  the  disposition 
of  the  property  conveyed  by  it.  The  limitation  over,  in  the  event 
of  the  death  of  the  children  of  Charlotte  Henry,  by  Hays,  is  to 
his  children  by  the  complainant.  But,  the  answer  of  Charlotte 
Henry  avers,  that  the  property  was  paid  for  with  her  own 
money,  and  if  this  be  assumed  as  true,  it  is  difficult  to  conceive 
a  reason  why,  in  any  event,  and  upon  any  contingency,  she 
should  ba  willing  that  it  should  be  enjoyed  by  the  children  of 
the  complainant.  This  provision  in  the  deed,  then,  is  to  be 
attributed  to  the  influence  of  Hays,  and  raises  a  strong  prob- 
ability, I  think,  independently  of  the  parol  evidence,  not  only 
that  his  money  paid  for  the  property,  but  that,  notwithstanding 
the  title  was  conveyed  by  Mr.  Ferine  to  Charlotte  Henry,  by 
his  direction,  his  will  controlled  its  destination. 

Though  he  had  utterly  discarded  his  wife,  there  would  ap- 
pear to  have  remained  in  his  heart  some  feeling  of  affection  for 
his  children  by  her,  and  to  this  feeling,  as  I  think,  must  be 
ascribed  the  .contingent  benefit  intended  for  them. 

In  view  of  all  the  circumstances  of  this  case,  I  am  of  opin- 
ion, that  the  complainant  is  entitled  to  relief,  and  shall  so  de- 
cree. 

26* 


342  HIGH  COURT  OF  CHANCERY. 

The  conveyances,  however,  I  regard  to  be  void,  as  frauds 
upon  the  rights  of  the  wife,  and  will,  therefore,  pass  a  decree 
for  the  sale  of  the  property  to  pay  her  one-third,  with  a  reserva- 
tion of  equities  as  to  the  residue  of  the  proceeds  of  sale.  The 
solicitor  of  the  complainant  may  prepare  a  decree. 

[No  appeal  was  taken  in  this  case.] 


ALEXANDER  FRANKLIN 

AND  ROBERT  FRANKLIN  . 

DECEMBER  TERM,  1848. 

BENJAMIN  FRANKLIN. 

[REMEDIAL  LAWS — ACT  OF  1842,  CH.  229 — BILL  OF  REVIVOR.J 

REMEDIAL  laws  are  to  be  construed  liberally,  to  advance  the  remedy  and  obvi- 
ate the  mischief ;  but,  they  are  not  to  be  so  expanded,  as  to  comprehend 
cases  altogether  beyond  their  purview. 

So  to  apply  and  enlarge  the  law,  would  be  judicial  legislation  under  the  guise 
of  interpretation. 

The  act  of  1842,  ch.  229,  only  provides  a  more  summary  and  economical  rem- 
edy, when  cases  abate,  either  before  or  after  decree,  by  the  death  of  parties, 
and  does  not  embrace  the  case  of  a  decree  which  has  become  dormant  by 
lapse  of  time. 

The  legal  presumption,  when  the  three  years  from  the  date  of  the  decree  have 
elapsed,  is,  that  it  has  been  executed  or  satisfied ;  and  the  appropriate  remedy 
is,  to  revive  it  by  a  bill  of  revivor. 

[On  the  3d  of  January,  1849,  a  petition  was  filed  in  this 
cause,  by  Robert  Franklin,  against  the  widow  and  children  of 
Benjamin  Franklin,  deceased,  stating,  that  on  the  25th  of  July, 
1839,  a  decree  was  passed  therein  for  the  partition  of  the  real 
estate  of  Robert  Franklin,  deceased,  in  Anne  Arundel  county, 
wherein  lot  No.  1  was  assigned  to  Benjamin  Franklin,  the  defend- 
ant, and  lot  No.  3  to  the  petitioner,  and  said  Benjamin  was  direct- 
ed to  pay  to  the  petitioner  for  owelty  of  partition,  the  sum  of 
$1,335;  that  the  whole  of  said  sum  of  money,  with  interest,  was 
still  due,  except  $500,  paid  on  the  1st  of  July,  1844,  a  receipt  for 


FRANKLIN  VS.  FRANKLIN.  343 

which  was  held  by  the  administratrix  of  said  Benjamin ;,  that 
said  Benjamin  died,  three  or  four  years  ago,  intestate,  leaving 
a  widow,  the  administratrix  above  mentioned,  and  several  in- 
fant children,  all  of  whom  reside  on  the  estate  and  receive  the 
rents  and  profits  thereof;  and  praying,  that  the  property  might 
be  decreed  to  be  sold  to  pay  said  debt,  or  a  writ  of  fieri  facias 
issued,  to  enforce  said  decree.  The  defences  made  were,  that 
the  decree  having  passed  more  than  three  years  before  the 
petition  was  filed,  it  could  only  be  revived  by  a  regular  bill  of 
revivor  ;  that  a  guardian  should  have  been  appointed  to  take 
the  infant's  answers ;  that  there  was  no  allegation  of  an  insuf- 
ficiency of  the  personal  estate ;  that  the  debt  had  been  fully 
paid  ;  and,  that  the  cause  of  action,  under  the  said  decree, 
was  or  ought  to  have  been,  included  in  the  bill  filed  in  this 
court  by  the  petitioner,  on  the  18th  of  January,  1849,  and  if 
not,  the  two  causes  ought,  at  least,  to  be  consolidated  now.] 

THE  CHANCELLOR: 

The  petition  filed  in  this  case  by  Robert  Franklin,  on  the  3d 
of  January  last,  is  founded  upon  the  act  of  1842,  ch.  229  ;  and, 
as  must,  be  conceded,  must  stand  or  fall,  according  as  it  may  or 
may  not  be  warranted  by  the  provisions  of  that  act.  Its  ob- 
ject is  to  procure,  in  a  summary  way,  the  execution  of  a  de- 
cree passed  by  this  court,  on  the  25th  of  July,  1839,  either  by 
a  sale  of  the  property  supposed  to  be  bound  specifically  by  the 
decree,  or  an  execution  of fieri Jacias  to  make  the  money. 

[After  briefly  alluding  to  the  facts  of  the  case,  the  Chancel- 
lor proceeded  to  notice  the  defence  taken  ;  that  the  decree 
ought  to  be  revived  by  a  bill  of  revivor.] 

t 

The  act  of  assembly,  upon  which  the  petitioner  relies,  is  a 
remedial  law,  and,  to  be  construed  liberally,  to  advance  the 
remedy  and  obviate  the  mischief;  but  still,  the  court  does  not 
feel  itself  at  liberty  to  stretch  its  provisions,  to  cases  which  do 
not  appear  to  have  been  within  the  contemplation  of  the  legis- 
lature, becaase,  it  may  think  that  the  convenience  of  parties — 


344  HIGH   COURT  OF  CHANCERY. 

always  promoted  by  facilitating  the  administration  of  public 
justice — would  be  advanced  by  such  extension  of  the  law. 
The  acts  of  the  legislature,  and  especially  those  of  the  charac- 
ter now  under  consideration,  are  to  receive  a  free  and  liberal 
interpretation  ;  but,  they  are  not  to  be  so  expanded  as  to  com- 
prehend cases  altogether  beyond  their  purview. 

So  to  apply  and  enlarge  the  law,  would  be  judicial  legisla- 
tion under  the  guise  of  interpretation. 

The  first  section  of  the  act  was  intended  to  cure  the  evil  re- 
sulting from  the  death  of  defendants  before  the  cause  had  ripen- 
ed into  a  final  decree  ;  and,  for  that  purpose  authorizes  the 
court,  in  its  discretion,  to  order  the  cause  to  be  proceeded  in  as 
if  no  such  death  had  occurred,  or,  to  direct  a  bill  of  revivor  to 
be  filed  against  the  proper  representative  of  the  deceased,  as 
may  appear  best  calculated  to  advance  the  purposes  of  justice. 
The  second  section  was  designed  to  supply  a  more  expedi- 
tious mode  of  reaping  the  fruits  of  decrees  already  passed,  and 
which,  by  the  death  of  parties,  subsequently,  would  therefore 
have  abated.  It  declares,  that  a  final  decree  shall  not  necessa- 
rily abate  by  the  suggestion  of  the  death  of  any  one  of  the  par- 
ties thereto  ;  but,,  the  court,  in  such  case,  may  order  execution 
to  be  made  of  such  decree,  as  if  no  such  death  had  occurred, 
or  require  a  subpoena  scieri  facias  to  be  issued,  or  bill  of  revivor 
to  be  filed  against  the  proper  representative,  or  pass  such  other 
order  or  direct  such  other  proceedings  as  may  seem  best  calcu- 
lated to  advance  the  ends  of  justice. 

This  law,  however,  only  provides  a  more  summary  and  eco- 
nomical remedy  when  cases  abate,  either  before  or  after  decree, 
by  the  death  of  parties.  The  first  section  provides  for  the  case 
of  death  of  defendants  only,  but  the  succeeding  section  extends 
to  the  death  of  any  one  of  the  parties  to  the  decree,  and,  of 
course,  was  intended  to  afford  a  more  expeditious  method  of  re- 
alising the  fruits  of  a  decree,  notwithstanding  the  death  of 
either  plaintiff  or  defendant,  than  the  law  and  practice  of  the 
court  had  before  given. 

But,  the  act  does  not  embrace  the  case  of  a  decree   become 
dormant  by  lapse  of  time,  and  when  the  law  presumes  from  the 


BEARD  VS.  LINTHICUM.  345 

delay,  that  it  is  released  or  satisfied.  It  is  not  very  difficult  to 
conceive  a  reason  why  the  legislature  may  not  have  intended 
to  embrace  decrees  presumed,  from  efflux  of  time,  to  be  exe- 
cuted or  satisfied,  and  to  extend  to  them  the  summary  remedy 
provided  by  the  act  for  the  case  of  abatements  caused  by  death. 
In  the  latter  case,  the  event — the  death  of  the  party — is  one 
which  no  diligence  or  precaution  on  the  part  of  the  suitor  can 
guard  against;  whilst,  in  the  former,  it  is  his  own  fault  if  he  suf- 
fer his  decree  to  become  dormant  by  lapse  of  time.  It  is  true, 
this  delay  is  not  unfrequently  the  result  of  forbearance  on  the 
part  of  the  creditor  ;  but  still,  until  the  parties  are  brought  be- 
fore the  court  and  heard,  the  legal  presumption,  when  the  spe- 
cified period  from  the  date  of  the  decree  has  run  out,  is,  that 
it  has  been  executed  or  satisfied.  Mullikin  vs.  Duvall,  7  G.  fy 
/.,  358,  359. 

Thinking,  then,  after  a  careful  consideration  of  the  act  of  as- 
sembly, that  it  does  not  embrace  this  case,  which  is  the  case  of 
a  decree  become  dormant  by  lapse  of  time,  as  well  as  abated  by 
the  death  of  the  defendant,  and  that  a  bill  of  revivor  would 
be  the  most  appropriate  remedy,  I  shall  dismiss  the  petition 
of  the  complainant,  though  without  costs,  the  case  being  one 
of  the  first  impression. 

[No  appeal  was  taken  from  this  order.] 


HARRIET  A.  BEARD 

vs.  x*     DECEMBER  TERM,  1848. 

JOHN  H.  LINTHICUM  ET  AL.- 

[STATDTE    OF    FRAUDS — PART     PERFORMANCE — SPECIFIC    PERFORMANCE.] 

IT  has  been  repeatedly  remarked  by  eminent  judges,  that  the  disposition, 
which  at  one  time  existed  to  relax  the  statute  of  frauds,  should  be  opposed  ; 
and,  that  the  courts  should  take  a  stand  against  any  further  encroachment 
upon  its  provisions. 

A  party  who  seeks  to  take  a  case  out  of  the  statute  on  the  ground  of  part  per- 
formance of  the  contract,  must  make  out,  by  clear  and  satisfactory  proof,  the 
existence  of  the  identical  contract,  charged  in  the  bill. 


346  HIGH   COURT   OF   CHANCERY 

It  is  not  enough,  that  the  act  relied  on,  is  evidence  of  some  agreement ;  but,  it 
must  be  unequivocal  and  satisfactory  evidence  of  the  contract,  charged  in 
the  bill. 

The  remedy,  in  cases  of  specific  performance,  must  be  mutual ;  and,  if  one  of 
the  parties  is  not  bound,  or  is  not  able  to  perform  his  part  of  the  contract,  he 
cannot  call  upon  the  court  to  compel  a  performance  by  the  opposite  party. 


[The  object  of  this  bill,  which  was  filed  by  Harriet  A.  Beard, 
administratrix  of  John  Beard,  deceased,  was  the  specific  per- 
formance of  a  contract  for  the  sale  of  land,  alleged  to  have  been 
entered  into  between  the  deceased  husband  of  the  complainant, 
and  John  H.  Linthicum  ;  and  also  a  writ  of  ne  exeat  against  the 
said  Linthicum. 

The  bill  stated  that  Beard,  in  his  lifetime,  had  bought  a 
parcel  of  land  from  George  H.  Stewart,  for  the  sum  of  three 
thousand  dollars,  which  he  afterwards  agreee  to  sell  to  Linthi- 
cum for  the  same  price,  increased  by  the  interest  which  had  ac- 
crued on  the  purchase  money  due  to  Stewart ;  and  that  Linthi- 
cum had  agreed  to  give  to  Beard  a  bill  of  sale  of  certain  negroes, 
to  secure  said  payment.  The  bill  further  stated,  that  Linthicum 
took  possession  of  the  land  in  pursuance  of  the  agreement,  but 
that  he  had  not  paid  any  portion  of  the  purchase  money,  or  ex- 
ecuted the  bill  of  sale  ;  but  that  he  had  actually  sold  one  of  the 
negroes,  and  applied  the  proceeds  of  the  sale  to  other  purposes, 
(although  upon  Beard's  remonstrating  with  him,  he  had  promis- 
ed to  apply  it  to  said  payment ;)  and  that  he  was  threatening  to 
leave  the  state  and  carry  the  negroes  with  him. 

Prayer  for  the  specific  performance  of  the  agreement,  an  in- 
junction to  restrain  Linthicum  from  selling  the  negroes,  or  re- 
moving them  out  of  the  state,  and  a  writ  of  ne  exeat  regno,  to 
prevent  him  from  leaving  the  state. 

Linthicum,  in  his  answer,  denied  the  making  of  the  contract 
stated  in  the  bill,  and  pleaded  the  statute  of  frauds  thereto  ;  and 
further  stated  that  he  did  agree  to  give  $1800  for  the  land,  if 
Beard  would  procure  the  consent  of  Stewart  to  the  sale,  and 
have  certain  disputes  relative  to  the  boundaries  of  the  land, 
settled  ;  that  Beard,  at  the  time  said  conditional  agreement  was 
made,  proposed  to  him  to  take  possession  of  the  land  at  once, 


BEARD  VS.  LINTHICUM.  347 

and  have  a  final  adjustment  of  the  contract  as  soon  as  the  con- 
sent of  Stewart  could  be  obtained  ;  that  he  accordingly  did 
enter  upon  the  land  and  occupied  the  same,  (though  he  did  not 
consider  himself  a  purchaser  thereof,)  but  that  Beard  never  had 
procured  the  consent  of  said  Stewart,  or  settled  the  disputes 
relative  to  the  boundaries  of  the  land  ;  that  he  never  had  agreed 
to  mortgage  any  negroes  to  secure  the  payment  of  the  purchase 
money  of  the  land  ;  that  the  negroes  alluded  to  belonged  to  his 
mother;  and  that  he  had  no  intention  of  removing  himself  or 
the  negroes  out  of  the  state. 

The  answer  of  Stewart,  who  was  made  a  defendant,  stated 
that  he  never  would  have  sanctioned  so  loose  a  contract  as  that 
charged  in  the  bill,  and  that  he  had  himself  instituted  a  suit  in 
chancery  to  obtain  a  sale  of  the  lands  in  question,  to  satisfy  his 
claim. 

Certain  testimony  was  afterwards  taken,  the  effect  of  which 
will  appear  from  the  Chancellor's  opinion ;  and  afterwards  an 
agreement  was  filed  to  amend  the  bill,  (if  the  Chancellor  would 
have  authorized  such  an  amendment,)  by  striking  out  the  alle- 
gation in  regard  to  the  interest  which  had  become  due  since 
the  purchase  from  George  H.  Stewart. 

The  case  having  been  submitted  at  this  term,  the  Chancellor 
delivered  the  following  opinion  :] 

THE  CHANCELLOR: 

This  is  a  bill  for  the  specific  performance  of  a  parol  contract  to 
sell  land,  and  the  contract  being  denied  by  the  answers,  and 
the  statute  of  frauds  insisted  on,  an  effort  has  been  made,  on 
the  part  of  the  plaintiffs,  to  take  the  case  out  of  the  statute  of 
frauds  by  proving  acts  of  part  performance. 

It  has  been  repeatedly  remarked  by  eminent  judges  that  the 
disposition  which  at  one  time  existed,  to  relax  the  statute  of 
frauds,  should  be  opposed,  and  that  the  courts  should  take  a 
stand  against  any  further  encroachment  upon  its  provisions,  and 
not  go  beyond  the  rules  and  precedents  already  established. 

Such  was  the  language  of  Chancellor  Kent  in  Philips  vs. 
Thompson,  1  Johns.  Ch.  -Rep.,  131,  and  such  I  am  persuaded 


348  HIGH  COURT  OF  CHANCERY. 

will  be  the  view  which  every  one  will  take  of  the  subject  who 
will  reflect  carefully  upon  the  consequences  which  must  result 
from  a  different  tendency. 

The  rule  is  believed  to  be  firmly  established,  that  to  entitle  a 
party  to  take  a  case  out  of  the  statute  of  frauds,  on  the  ground 
of  part  performance  of  the  contract,  he  must  make  out  by  clear 
arid  satisfactory  proof  the  existence  of  the  identical  contract  laid 
in  his  bill.  It  is  not  enough  that  the  act  relied  on  is  evidence 
of  some  agreement,  but  it  must  be  unequivocal  and  satisfactory 
evidence  of  the  contract  charged  in  the  bill.  Philips  vs.  Thomp- 
son, 1  Johns.  Ch.  Rp.,  131  ;  Parkhurst  vs.  Van  Courtland,  ib. 
273  ;  3  Kent's  Com.  451 ;  2  Story's  Equity,  sec.  764.  This 
court  has  upon  several  occasions  been  called  upon  to  express 
its  opinion  upon  cases  resembling  in  principle  the  present,  and 
the  conclusions  to  which  it  has  arrived  after  a  careful  consider- 
ation of  the  subject,  have  been  adverse  to  the  relief  asked  for. 

The  court,  if  it  acts  at  all  in  such  cases,  must  act  upon  the 
entire  contract  as  laid  in  the  bill.  It  must  be  executed  in  all 
its  parts  specifically  and  rigorously,  and  hence  the  indispensa- 
ble necessity  that  each  and  every  part  of  the  agreement  set  up 
in  the  bill  should  be  clearly  established  by  the  proof.  Owens  vs. 
Baldwin  and  Wheeler,  ante,  page  120 ;  Waters  vs.  Waters,  ante, 
page  196. 

Unless  this  can  be  done,  it  is  obviously  better  to  send  the 
plaintiff  to  a  court  of  law,  where  relief  can  be  given  in  dam- 
ages, with  a  moderation  agreeable  to  equity  and  good  con- 
science, and  where  the  various  pretensions  of  the  parties  can 
be  considered  by  a  tribunal  more  competent  to  decide  upon  the 
extent  of  the  actual  injury  sustained  by  the  non-performance  of 
the  agreement. 

In  the  present  case,  the  contract  as  laid  in  the  bill,  is  con- 
ceded not  to  be  sustained  by  the  proof,  and  hence  the  condi- 
tional agreement  to  amend  the  bill  by  striking  out  the  allegation 
upon  the  subject  of  interest  upon  the  purchase  money.  The 
right  to  amend  this  bill,  and  especially  at  this  stage  of  the  pro- 
ceedings, is  contested,  and  perhaps  upon  an  examination  of 
the  books  of  practice  and  authorities,  it  would  be  found  not  to 


BEARD  VS.  LINTHICUM.  349 

be  warranted ;  but  the  court  does  not  now  propose  to  decide 
the  point,  as  even  if  the  amendment  be  authorized,  or  the  bill 
had  originally  taken  the  shape  now  proposed  to  be  given  to  it, 
still,  I  think  the  plaintiff  cannot  have  a  decree,  because  she  has 
not  laid  before  the  court  that  clear,  definite  and  unequivocal 
proof  of  the  contract  in  all  its  terms,  which  the  rule  requires. 

So  far  as  the  bill,  in  this  case,  charges  an  agreement  by  the 
defendant  to  secure  the  payment  of  the  purchase  money  of  the 
land  by  a  mortgage  of  slaves,  there  is  a  total  and  absolute  fail- 
ure of  evidence,  not  a  witness  having  spoken  upon  the  subject, 
nor  a  single  circumstance  having  been  shown,  from  which  such 
an  agreement  can  be  fairly  inferred.  It  is  true,  some  one  or 
more  of  the  witnesses  do  say  something  about  the  plaintiff's 
intestate  having  complained  of  the  sale  by  the  defendant  of  a 
slave  ;  but  the  answer  discloses  a  sufficient  reason  for  this  ;  and 
independent  of  the  answer,  it  would  surely  be  a  random  con- 
jecture from  this  isolated  and  inconclusive  circumstance,  to 
come  to  the  conclusion  that  the  defendant  had  agreed  to  give  a 
mortgage  upon  the  slaves  in  question,  to  secure  the  payment  of 
the  purchase  money  of  the  land.  It  is  surely  a  pertinent  in- 
quiry to  ask,  if  such  an  agreement  was  made,  why  was  not  the 
mortgage  given  ?  There  was  unquestionably  abundant  time, 
and  if  the  contract  of  sale  had  been  definitively  settled,  and  the 
terms  agreed  upon,  it  is  difficult  to  conceive  a  sufficient  reason 
for  the  non-execution  of  the  mortgage. 

I  regard,  therefore,  this  charge  in  the  bill  as  wholly  unsup- 
ported by  the  proof,  and  the  rule  being,  that  the  identical  con- 
tract in  all  its  parts  as  set  up  in  the  bill,  must  be  proved,  it 
would  follow  that  a  failure  of  evidence  in  this  particular  would 
be  fatal  to  the  complainant's  prayer  for  a  specific  performance. 

But,  conceding  that  this  part  of  the  contract  is  independent 
and  separate  from  the  residue,  or  that  the  giving  the  mortgage 
simply  referred  to  the  mode  of  payment ;  or  that  for  any  other 
reason,  the  plaintiff  may  have  a  specific  execution  of  the  resi- 
due of  the  agreement  if  proved,  laying  the  stipulation  about  the 
mortgage  out  of  view,  still,  I  think,  the  complainant  has  failed 
to  show  herself  entitled  to  the  relief  she  asks  for. 
VOL.  i — 30 


350  HIGH  COURT  OF  CHANCERY. 

There  is  not,  in  my  opinion,  that  clear  and  convincing  proof 
of  a  contract  for  the  sale  of  land  and  acts  of  part  performance, 
which  must  be  produced  to  take  a  case  out  of  the  statute  of 
frauds.  There  was  some  agreement,  no  doubt,  between  these 
parties,  but  what  it  was,  what  were  its  terms  and  conditions, 
does  not  appear,  and  it  is  impossible,  I  think,  to  say  that  the 
act  of  part  performance  relied  upon,  could  have  been  with  no 
other  view  or  design  than  to  perform  the  agreement  set  up  in 
the  bill ;  which,  as  the  cases  prove,  is  indispensably  necessary 
to  entitle  the  party  to  a  specific  performance. 

He  must  show  acts,  unequivocally  referring  to  and  resulting 
from  that  agreement,  such  as  the  party  would  not  have  done 
unless  on  account  of  that  very  agreement.  In  this  respect,  I 
think,  the  present  case  is  deficient,  and  therefore  a  specific  per- 
formance cannot  be  decreed. 

But,  there  is  another,  and,  in  my  judgment,  insuperable  ob- 
jection to  granting  the  complainant  relief  upon  this  bill.  The 
intestate  never  was  in  a  condition  to  complete  the  title,  and  the 
cases  are  abundant  to  show,  that  unless  a  party  is  ready  and 
competent  to  perform  the  contract  on  his  part,  he  cannot  call 
for  a  specific  performance  from  the  other  side.  Benedict  vs. 
Lynch,  1  Johns.  Ch.  Rep.,  370,  and  the  cases  referred  to  by 
Chancellor  Kent  in  that  case  are  conclusive  upon  the  subject. 

The  title  to  the  land  in  this  case  was,  and  is,  in  George  H. 
Stewart,  who  sold  to  Beard,  and  to  whom  more  is  due  than  the 
land,  according  to  the  proof,  would  now  sell  for.  Stewart  says  in 
his  answer,  that  he  never  would  have  sanctioned  such  a  loose 
contract  as  is  set  up  by  this  bill,  and  it  is  alleged  by  him,  and 
it  is  in  proof,  that  he  is  now  prosecuting  an  independent  bill  in 
this  court,  against  the  widow  and  heirs  of  Beard  for  the  sale  of 
the  land  to  pay  his  claim,  and  he  insists  that  he  should  not  be 
embarrassed  or  delayed  in  the  prosecution  of  his  suit,  by  the 
proceedings  in  this. 

The  remedy  in  these  cases  of  specific  performance  must  be 
mutual,  and  if  one  of  the  parties  is  not  bound,  or  is  not  able  to 
perform  his  part  of  the  contract,  he  cannot  call  upon  the  court 
to  compel  a  performance  by  the  opposite  party.  Benedict  vs. 


BROOKS  VS.  DELAPLAINE.  351 

Lynch,  1  Johns.  Ch.  Rep.,  370.  And  it  being  perfectly  clear 
in  this  case  that  Beard  never  was,  and  the  complainant  is  not 
now,  in  a  condition  to  perform  his  part  of  the  contract,  the  re- 
lief asked  for,  must  on  that  account  be  refused. 

Upon  the  whole,  I  am  of  opinion,  that  the  injunction  must 
be  dissolved,  the  ne  exeat  discharged,  and  the  bill  dismissed. 

[No  appeal  was  taken  from  this  decree.] 


CHAUNCY  BROOKS  ET  AL. 

vs.  ^.     DECEMBER  TERM,  1848. 

JOHN  DELAPLAINE  ET  AL. 

[CONCURRENT  JURISDICTION  OF  THE  COURT  OF  CHANCERY  AND  THE  COUNTY 

COURTS.] 

THE  appearance  of  the  defendants  to  the  bill,  and  their  submitting  to  answer 

it,  would  be  a  waiver  of  any  objection  to  the  jurisdiction  of  the  court. 
The  power  of  the  county  courts,  within  the   boundaries  assigned   them,   are 

equal,  in  every  respect,  to  the  powers  of  the  Court  of  Chancery. 
When  two  courts  have  concurrent  jurisdiction  over  the  same  subject  matter, 

the  court,  in  which  the  suit  is  first  commenced,  is  entitled  to  retain  it. 
This  rule  is  vital  to   the  harmonious  movement  of  the  courts  ;  and,  any  other 

would,  unavoidably,  lead  to  perpetual  collisions,  and  be  productive  of  the 

most  calamitous  results. 

[On  the  28th  of  March,  1844,  John  Delaplaine,  of  Carroll 
county,  executed  to  Wm.  P.  Maulsby,  a  deed  of  trust  of  all  his 
property  for  the  benefit,  firstly  of  certain  of  his  creditors  there- 
in mentioned,  and  after  the  payment  of  their  claims,  for  the  be- 
nefit of  all  other  persons  having  any  demands  against  him.  In 
the  month  of  August  following,  said  Delaplaine  applied  for  the 
benefit  of  the  insolvent  laws  of  Maryland,  and  the  said  William 
P.  Maulsby  was  appointed  his  permanent  trustee  ;  and  in  the 
month  of  October,  1846,  a  bill  was  filed  on  the  equity  side  of 
Frederick  County  Court  by  Basil  Norris,  one  of  the  preferred 
creditors,  against  said  Delaplaine,  and  Maulsby,  for  an  account 
of  the  trust  fund  of  the  said  Maulsby,  and  for  an  adjudication 


352  HIGH  COURT  OF  CHANCERY. 

of  the  questions  which  might  arise  Under  the  deed  of  trust,  or 
grow  out  of  the  subsequent  application  of  said  Delaplaine  for 
the  benefit  of  the  insolvent  laws.  A  decree  for  an  account  was 
obtained  in  this  case,  with  which  said  Maulsby  complied ;  after 
which  a  bill  was  filed  in  this  court  by  certain  of  the  unpreferred 
creditors  of  the  insolvent,  to  have  the  deed  of  trust  set  aside  for 
fraud,  and  for  an  account  by  said  Maulsby.  The  defendants 
in  this  case  having  filed  their  answer,  the  question  as  to  the 
jurisdiction  of  this  court  was  presented  to  the  Chancellor,  who 
delivered  the  following  opinion:] 

THE  CHANCELLOR  : 

Of  the  jurisdiction  of  Frederick  County  Court  as  a  court  of 
equity  over  the  subject  of  this  trust,  it  is  supposed  no  serious 
doubt  can  be  entertained  ;  but  even  if  this  was  questionable,  the 
appearance  of  the  defendants  to  the  bill  filed  there,  and  their 
submitting  to  answer  it,  would  be  a  waiver  of  any  objection 
upon  that  ground.  Carroll  vs.  Lee,  3  G.  Sf  J.,  504. 

The  bill  filed  in  the  Frederick  court  was  a  creditors'  bill,  and 
submitted  to  the  court  their  rights,  as  they  might  exist  under  the 
deed,  or  be  affected  by  the  proceedings  in  insolvency  of  the 
grantor ;  and  the  order  of  the  court  referring  the  case  to  the 
Auditor,  contains  a  reservation  of  equities,  that  such  subsequent 
proceedings  might  be  adopted,  according  as  the  creditors  might 
prefer  to  claim  under,  or  against  the  deed. 

The  bill  filed  in  this  court  assails  the  deed  of  March,  1844, 
as  fraudulent  in  fact,  and  under  our  insolvent  system  ;  and  pro- 
poses to.  set  aside  the  sales  made  by  the  trustee  Maulsby ;  to 
have  the  property  sold  by  a  trustee  to  be  appointed  by  this 
court ;  and  asks  for  an  account. 

But  Maulsby  has  been  already  called  upon  to  account  for 
this  same  trust  in  a  court  of  co-ordinate  jurisdiction ;  which 
court  has  directed  its  proper  officer  to  state  the  necessary  ac- 
counts, and  to  bring  before  it  the  parties  who  may  be  interested. 
If  the  creditors,  when  they  come  in,  are  dissatisfied  with  the 
conduct  of  the  trustee,  either  in  disposing  of  the  trust  estate, 
or  in  any  other  respect,  they  may  in  that  court  take  such  steps  as 


BROOKS  VS.  DELAPLAINE.  353 

to  them  may  seem  proper,  for  the  vindication  of  their  rights. 
If  they  have  reason  to  think  that  the  decree  of  the  court,  of 
February,  1847,  was  obtained  by  collusion,  and  fraudulently,  the 
remedy  for  such  fraud  is  open  to  them  there.  Or,  if  the  terms 
of  the  decree  are  such  as  to  leave  open  the  questions  they  de- 
sire now  to  litigate,  the  court  which  passed  the  decree  is  surely 
the  proper  tribunal  for  the  adjudication  of  those  questions. 

This  court  has  no  means  of  knowing,  nor  is  it  important  it 
should  know,  what  further  proceedings  have  been  had  in  Fred- 
erick County  Court,  since  the  decree  of  February,  1847. 

It  is  enough  that  it  is  duly  informed,  that  such  a  decree  was 
passed  upon  a  bill  filed  there,  before  the  exhibition  of  the  bill 
in  this  court. 

That  decree,  it  is  presumed,  is  in  a  course  of  execution,  and 
if  this  court  is  to  proceed  upon  the  bill  filed  here,  it  is  indisput- 
ably necessary  that  the  cause  in  Frederick   should   stop ;  as 
otherwise  it  may  happen,  and  indeed  the  result  can  scarcely  be 
avoided,  that  inconsistent  and  conflicting  decrees  will  be  pass- 
ed  with  reference  to  the  same  subject    matters.      But  what 
power  has  this  court  to   arrest  the  proceedings  of  Frederick 
County  Court  ?     The  county  courts  by  the  express  terms  of  the 
act  of  1815,  chapter  163,  section  1,  are  clothed  with   all  and 
singular  the  powers,  authorities  and  jurisdictions  that  can  or 
may  be  exercised  by  the  Chancellor  of  this  state,  whether  the 
same  be  derived  from  the  common  law,  or  in  virtue  of  any  stat- 
ute or  act  of  assembly  heretofore  passed.     These  county  courts 
are,  to  all  intents  and  purposes,  co-ordinate  courts  with  ttis, 
exercising  concurrent  jurisdiction  within  their  respective  or- 
bits— the  jurisdiction  of  the  Chancery  Court  being  co-extensive 
with  the  limits  of  the  state,  that  of  the  county  courts  depending 
upon  the  locality  of  the  property,  or  upon  the  residence  of  the 
defendants.     But  the  powers  of  the  county  courts  within  the 
boundaries  assigned  them,  are  equal  in  every  respect  to  the 
powers  of  this  court ;  the  appeal  from  all  being  to  the  Court  of 
Appeals. 

There  is  no  instance,  as  remarked  by  the  late  Chancellor  in 
Brown  vs.  Wallace,  1  G.  fy  «/.,  497,  in  which  either  one  of  the 
30* 


354  HIGH  COURT  OF  CHANCERY. 

English  courts  has  attempted  to  hinder  or  stay  any  part  of  the 
proceedings  in  a  suit  which  had  been  rightly  instituted,  and  was 
then  progressing  in  another  ;  nor  has  it  ever  been  intimated  that 
either  of  these  courts  could  call  before  it  the  parties  to  a  suit 
depending  in  the  other,  to  give  an  account  of  acts  done  under 
the  authority  of  the  other. 

The  rule  established  by  that  case,  both  by  the  reasoning  and 
judgment  of  the  Chancellor,  and  by  the  Court  of  Appeals,  is 
this :  that  when  two  courts  have  concurrent  jurisdiction  over 
the  same  subject  matter,  the  court  in  which  the  suit  is  first 
commenced,  is  entitled  to  retain  it. 

This  rule  would  seem  to  be  vital  to  the  harmonious  move- 
ment of  courts  whose  powers  may  be  exerted  within  the  same 
spheres,  and  over  the  same  subjects  and  persons. 

This  court  has  no  more  power  to  stay  the  proceedings  of  the 
county  courts  as  courts  of  equity,  than  have  the  latter  courts  to 
prohibit  proceedings  in  this;  and  if  this  court  should  now  enter- 
tain jurisdiction  of  the  subject  matter  of  the  present  contro- 
i  versy,  and  proceed  to  decree  the  relief  sought  by  the  bill,  there 
v  may,  and  will  probably,  be  two  decrees  inconsistent  with  each 
/  other,  each  affecting  the  same  persons. 

}        The  only  course  of  safety,  therefore,  is,  when  one  court  hav- 
(ing  jurisdiction  over  the  subject,  has  possession  of  the  case,  for 
All  others,  with  merely  co-ordinate  powers,  to  abstain  from  any 
interference. 

Any  other  rule  will  unavoidably  lead  to  perpetual  collision, 
and 'be  productive  of  the  most  calamitous  results. 

It  is  said  that  the  creditors  who  file  this  bill  were  not  parties 
to  the  decree  in  the  Frederick  court.  But  the  bill  filed  in  that 
court  was  a  creditor's  bill,  and  the  decree  was  for  the  benefit  of 
all  the  creditors,  and  in  the  nature  of  a  judgment  for  all;  and 
all  the  creditors  are  entitled,  and  have  been  notified  to  come  in 
and  prove  their  debts,  according  to  the  course  of  proceedings 
usual  in  such  cases.  And  as  decided  by  Chancellor  Kent  in 
Thompson  vs.  Brown,  1  Johns.  Ch.  Rep.,  619,  from  the  date 
of  such  decree  against  an  executor  or  administrator,  and  on  a 
disclosure  of  assets,  an  injunction  would  be  granted  on  motion 


MONICA  VS.  MITCHELL.  355 

of  either  party,  to  stay  all  proceedings  of  any  of  the  creditors, 
at  law. 

The  subject  of  this  trust,  prior  to  the  filing  of  the  present 
bill,  was  before  a  court  of  competent  jurisdiction,  and  of  powers 
equally  ample  as  those  possessed  by  this  court.  That  court 
and  this,  if  both  proceed  in  the  causes  before  them,  may  come 
to  different  and  irreconcileable  conclusions,  and  thus  lead  to  a 
conflict  of  powers  which  can  only  end  in  mischief  and  perplex- 
ity. I  had  occasion  to  examine  the  subject  in  the  case  of 
Winn  and  Ross  vs.  Albert  and  wife,  and  then  came  to  the  con- 
clusion, which  has  been  confirmed  upon  subsequent  reflection, 
that  when  any  one  of  our  equity  courts,  having  jurisdiction 
over  the  subject,  has  possession  of  it,  it  must  be  finally  dispos- 
ed of  there  ;  and  that  the  other  co-ordinate  courts  ought  not  in 
any  way  to  interfere. 

Entertaining  this  impression,  and  as  it  is,  therefore,  in  my 
judgment,  impossible  for  this  court  to  grant  the  relief  prayed  by 
by  this  bill,  it  must  be  dismissed. 

[No  appeal  was  taken  from  this  decree.] 


NEGROES  MONICA  ET  AL.    \ 

vs.  DECEMBER  TERM,  1848. 

WALTER  MITCHELL  ET  AL.  > 


[DEVISE  TO  MANUMITTED  NEGROES — ACT  OF  1831,  CH.  281.] 

A  TESTATOR,  by  his  will,  manumitted  certain  negroes,  and,  after  giving  them  a 
pecuniary  legacy,  devised  as  follows  :  "I  will  and  devise  that  my  executor 
shall  cause  to  be  erected  on  some  part  of  my  farm  called  Rose  Hill,  (the 
place  to  be  selected  by  the  above  manumitted  negroes,)  a  good,  substantial 
dwelling  house,  with  one  brick  chimney,  which  house,  together  with  two 
acres  of  land  adjoining  thereto,  I  give  and  devise  to  the  above  manumitted 
negroes,  and  their  heirs,  forever."  HELD — 

That  the  testator  intended  by  this  devise,  to  provide  the  negroes  in  question 
with  a  habitation  to  live  in,  and,  as  this  intent  comes  in  conflict  with  the  pol- 
icy of  the  legislature,  which  forbids  persons  in  their  situation  from  remaining 


356  HIGH  COURT  OF  CHANCERY. 

in  the  state,  unless  upon  terms  incompatible  with  the  unrestricted  enjoyment 
of  the  devise,  the  latter  must  fail. 

Slaves  manumitted  since  the  act  of  1831,  ch.  281,  cannot  remain  in  this  state  in 
a  condition  of  freedom,  though  the  Orphans  Courts  may,  in  their  discretion,  give 
them  annual  permits  to  remain,  as  by  said  act  is  provided. 

[The  principal  question  presented  by  this  case,  the  facts  of 
which  will  sufficiently  appear  in  the  opinion  of  the  Chancellor, 
was,  whether  certain  negroes,  manumitted  by  will  since  the  act 
of  1831,  chap.  281,  and  consequently  incapable  of  residing 
within  the  state,  were  entitled  to  a  devise  of  certain  real  estate, 
made  to  them  by  the  same  will :] 

THE  CHANCELLOR : 

Without  meaning  to  decide  that  a  master  may  not,  since  the 
act  of  1831,  chap.  281,  manumit  his  slaves  by  will,  and,  at  the 
same  time  make  to  them  an  effectual  devise  of  real  estate,  I  am 
yet  of  opinion,  that  the  devise  in  the  will  of  Ignatius  Semmes, 
upon  which  the  question  in  this  case  arises,  must  fail. 

The  will  was  executed  in  April,  1843,  and  the  testator  died 
soon  afterwards.  By  it  he  gives  freedom  to  several  of  his 
slaves,  to  each  of  whom  he  bequeathed  a  pecuniary  legacy  of 
three  hundred  dollars,  of  which  several  of  them  have  received 
the  sum  of  two  hundred  and  fifty-nine  dollars  and  fifty-four 
cents,  that  being  the  dividend  of  the  personal  assets  applicable 
to  the  purpose,  and  it  is  not  understood  that  the  claim  of  the 
unsatisfied  legatees  to  that  extent  is  controverted. 

But,  in  addition  to  the  bequest  of  freedom,  and  the  pecuniary 
legacy,  the  will  contains  the  following  clause  :  "I  will  and 
devise,  that  my  executor  shall  cause  to  be  erected  on  some 
part  of  my  farm,  called  Rose  Hill,  (the  place  to  be  selected  by 
the  above  manumitted  negroes,)  a  good  substantial  dwelling 
house,  with  one  brick  chimney,  which  house,  together  with  two 
acres  of  land  adjoining  thereto,  I  give  and  devise  to  the  above 
manumitted  negroes  and  their  heirs  forever." 

Now,  it  seems  to  me,  that  the  testator  intended  by  this  de- 
vise, to  provide  the  negroes  in  question,  with  a  habitation  to 
live  in,  and,  as  this  intent  comes  in  conflict  with  the  policy  of 


MONICA  VS.  MITCHELL.  357 

the  legislature,  which  forbids  persons  in  their  situation  from 
remaining  in  the  state,  unless  upon  terms  incompatible  with 
the  unrestricted  enjoyment  of  the  devise,  the  latter  must  fail. 

Looking  to  the  3d.  4th  and  5th  sections  of  the  act  of  1831, 
chap.  281,  it  is  manifest,  that  no  slave  manumitted  since  its 
passage  can  remain  in  this  state  in  a  condition  of  freedom. 
It  is  true,  that  the  orphans  courts  may  or  may  not  grant 
slaves  so  manumitted  annual  permits  to  remain,  but  the  privilege 
of  doing  so  depends  upon  the  discretion  of  the  court,  and  if 
withheld,  they  are  liable  to  be  expelled  at  any  time. 

The  duty  of  the  courts  to  give  effect  to  devises,  if  it  can  be 
done,  is  conceded,  but  the  law  qua  nihilfrustra  will  confer  no 
privilege  or  right  upon  a  party  which  he  cannot  enjoy,  and  for 
that  reason,  will  never  cast  the  freehold  upon  an  alien  heir  who 
cannot  keep  it.  2  Kent's  Com.,  53. 

Being  satisfied  from  the  terms  of  this  devise,  that  it  was  the 
intention  of  the  testator  to  provide  for  these  negroes  a  perma- 
nent home,  and  not  to  confer  upon  them  a  title,  of  which  they 
could  only  get  the  benefit  by  selling,  and  as  that  intention  must 
yield  to  the  legal  policy  of  the  state,  as  declared  by  the  legisla- 
ture, I  should,  if  no  other  reason  existed,  feel  bound  to  declare 
the  devise  void. 

But  there  is  another  reason.  It  appears  that  the  personal 
assets  are  insufficient  to  pay  debts  and  the  pecuniary  legacies  ; 
and  that,  consequently,  the  latter  receive  dividends  only.  How 
then  is  the  house  to  be  erected  ?  Not,  certainly,  by  having  re- 
course to  the  real  estate  in  the  hands  of  the  devisees,  for  they 
are  equally  objects  of  the  bounty  of  the  testator;  and  there  is 
nothing  in  the  will  to  show  any  such  intention.  Stevens  vs. 
Gregg,  10  Gill  fy  Johnson,  143.  The  executor  is  charged 
with  the  duty  of  erecting  the  house,  which  of  course  was  to  be 
done  out  of  the  personal  assets,  and  they  being  deficient,  the 
duty  must  necessarily  remain  unperformed,  and  as  the  two 
acres  of  land  were  to  adjoin  the  house,  that  portion  of  the  de- 
vise must  fail  also,  there  being  no  house  to  adjoin. 

A  decree  will  be  signed  for   the  payment    of  the  pecuniary 


358  HIGH  COURT  OF  CHANGER  ?. 

legacies,  but  under  the  circumstances  of  the  case,  the  parties 
respectively  will  be  required  to  pay  their  own  costs. 

[No  appeal  was  taken  from  this  decree.] 


WEST  AND  COURTENAY   } 

ADM'RS  OF  WEST          (     „  „ 

>     DECEMBER  TERM,  1848. 
vs.  I 

NATHANIEL  WILLIAMS. 

[EXCEPTIONS  TO  ANSWER — ALLEGATIONS  op  THE  BILL.] 

EXCEPTIONS  to  an  answer  for  insufficiency,  can  only  be  sustained  where  some 
material  allegation,  charge  or  interrogatory  in  the  bill,  is  not  fully  answered. 

The  court  must  see,  by  referring  to  the  bill,  alone,  in  connection  with  the  ex- 
ception, that  the  precise  matters,  as  to  which  a  further  answer  is  sought, 
are  stated  in  the  bill,  or,  that  such  an  answer  is  called  for  by  the  interroga- 
tories. 

Exceptions  to  an  answer,  upon  the  ground  that  the  defendant  did  not  give  a  de- 
tailed account  of  the  management  of  a  trust  fund  which  came  to  his  hands, 
as  agent,  were  overruled,  because  the  bill  only  called  upon  him  for  an  account 
of  the  business  of  the  trust,  and  not  for  an  account  of  the  business  of  the  trust 
and  og-enci/. 

[James  West,  deceased,  in  the  year  1805,  conveyed  his  prop- 
erty to  trustees  for  the  benefit  of  his  creditors,  and  was  himself 
appointed  by  the  trustees  their  agent  for  managing  the  trust. 
On  the  death  of  West,  in  1809,  Nathaniel  Williams  was  made 
agent  in  his  place,  and  afterwards  on  the  death  of  the  trustees, 
he  was  appointed  trustee,  and  has  continued  to  act  in  that  ca- 
pacity ever  since.  This  bill  was  brought  by  the  complainants 
to  recover  from  Williams  certain  moneys  which  they  allege  to 
be  due  the  estate  of  their  intestate,  on  account  of  his  services 
as  agent  as  aforesaid  ;  and  also  an  allowance  to  his  widow,  one 
of  the  complainants,  for  dower.  The  case  was  brought  before 
the  court  at  this  term,  on  exceptions  to  the  defendant's  answer, 
and  as  all  the  facts  material  to  that  question  are  given  by  the 


WEST  VS.  WILLIAMS.  359 

Chancellor,  in  his  opinion,  it  is  unnecessary  to  make  a  full  state- 
ment of  the  case.] 

THE  CHANCELLOR  : 

To  the  original  answer  of  the  defendant  in  this  case,  the  plain- 
tiffs excepted  for  insufficiency,  but  before  the  time  fixed  for 
hearing  these  exceptions  had   arrived,  the   defendant  filed  an 
answer  to  the  exceptions  ;  and  it  seems  to  be  conceded  that 
this  answer  gives  all  the  information  required  by  the  bill,  and 
is  full  and  complete  except  with  reference  to  a  part  of  that  spe- 
cified in  the  fourth  exception,  which  is  in  the  following  words : 
"That  whereas,  the  bill  calls  for  a  particular  and  detailed  ac- 
count of  the  entire  trust,  since  it  came  under  tire  charge  of  the 
defendant,  either  as  agent  or  trustee,  specifying  the   sums  of 
money  received,  the  date  of  each  receipt,  the  amount  of  each 
receipt,  and   the  party  from  whom  received.     The  sums  paid 
away ;  the  amount  of  each   payment ;  the  date  of  each  pay- 
ment ;  and  the  name  of  the  party  to  whom  paid  ;  the  entire  ex- 
penses of  the  trust,  and   the   particulars  of  such  expenses." 
And  this  exception  affirms,  that  the  answer  gives  no  such  ac- 
count as  the  bill  in  this  respect  is  assumed  to  call  for. 

Independently  of  other  objections,  the  existence  and  validity 
of  which  it  is  not  proposed  now  to  notice,  it  is  material  to  in- 
quire, whether  the  plaintiffs  by  their  bill  have  made  such  a  case 
as  entitle  them  to  all  the  information  called  for  by  this  excep- 
tion. 

It  appears  by  the  bill  and  exhibits,  and  the  admissions  of  the 
answer,  that  James  West,  the  intestate  of  the  plaintiffs,  on  the 
21st  of  November,  1805,  conveyed  all  his  property,  of  every 
description,  to  Humphrey  Pierce  and  Alexander  Macdonald,  in 
trust,  for  the  payment  of  his  debts  in  the  mode  specified  in  the 
conveyance ;  that  the  trustees  accepted  the  trust  and  appointed 
James  West  their  agent  in  the  management  thereof,  who  con- 
tinued to  act  as  such  until  his  death  in  December,  1809 ;  and 
that  there  became  and  was  due  to  him  for  advances  of  cash  be- 
yond his  receipts,  and  for  his  services  as  agent,  the  sum  of 
about  $9,900. 


360  HIGH  COURT  OF  CHANCERY. 

The  bill  then  charges,  "that  after  the  death  of  the  said  West, 
the  said  trustees,  appointed  Nathaniel  Williams,  Esq.,  (the  de- 
fendant,) their  agent,  who  afterwards,  on  the  death  of  said  trus- 
tees, was,  by  a  decree  of  Baltimore  County  Court,  passed  on 
the  petition  of  Luke  Tiernan  and  others,  stating  themselves  to 
be  creditors  of  said  James  West,  duly  appointed  trustee  for  the 
estate,  with  the  same  powers  which  by  the  deed  of  trust  afore- 
said, were  vested  in  the  original  trustees."  And  it  appears  by 
a  copy  of  the  decree  of  Baltimore  County  Court,  that  the  de- 
fendant was  appointed  trustee  on  the  21st  of  September,  1836. 

The  bill,  after  some  averments,  not  necessary  to  be  noticed, 
states,  that  the  complainants  had  received  from  the  defendant, 
from  time  to  time,  several  sums  of  money,  amounting  in  the 
aggregate  to  about  the  principal  of  the  said  sum  of  $9,900,  but 
that  they  had  received  nothing  on  account  of  interest,  and  that 
a  large  balance  still  remains  due  them  for  interest,  which  the 
defendant  refuses  to  pay.  It  is  chiefly  to  recover  this  balance 
that  the  present  bill  is  filed  ;  and  to  that  end,  after  the  forego- 
ing statement,  the  defendant  is  called  upon  to  give  a  detailed  ac- 
count of  the  business  of  the  trust,  showing  the  amounts  received 
by  him,  and  the  payments  made  from  the  trust  fund,  and  par- 
ticularly the  sums  paid  to  the  complainants ;  and  stating  the 
times  of  the  receipts  and  payments,  and  the  accounts  on  which 
they  were  paid  ;  and  also  full  and  perfect  answer  make  to  the 
premises,  &c. 

The  answer  to  the  exceptions  is  admitted  to  be  satisfactory 
and  full  with  regard  to  the  transactions  of  the  defendant  as  trus- 
tee ;  but  it  is  said  that  it  does  not  give  an  account  of,  or  any 
information  in  reference  to  the  proceedings  of  the  defendant 
whilst  he  acted  in  the  capacity  of  agent  of  the  first  trustees. 
And  the  rule  is  insisted  upon,  that  a  respondent  submitting  to 
answer,  must  answer  fully  ;  and  there  can  be  no  doubt  that  such 
is  the  rule.  Warfield  vs.  Gambril,  1  G.  if  J.,  503  ;  Salmon  vs. 
Clagett,  3  Bland,  125. 

If  the  answer  is  not  explicit,  the  defendant  may  be  pressed  by 
exceptions  till  it  is  so,  but  exceptions  to  an  answer  for  insuf- 
ficency  can  only  be  sustained  where  some  material  allegation, 


WEST  VS.  WILLIAMS.  361 

charge,  or  interrogatory  in  the  bill,  is  not  fully  answered. 
Blaidsell  vs.  Stephens,  16th  Fes.,  179 ;  Stafford  vs.  Brown,  4 
Paige,  88.  It  is  only  where  the  allegations  and  interrogatories 
of  the  bill  are  not  fully  answered,  that  the  defendant  can  be 
urged  to  a  fuller  response  by  exceptions. 

The  4th  exception  in  this  case  takes  the  ground  that  the  de- 
fendant was  called  upon  by  the  allegations  and  interrogatories 
of  the  bill  to  give  a  detailed  account  of  the  trust  since  it  came 
under  his  charge,  either  as  agent  or  trustee,  and  the  objection 
now  urged  is,  that  he  has  not  given  such  account  as  agent. 

But  upon  examining  the  bill  with  some  care,  I  do  not  find 
that  he  is  called  upon  by  its  allegations  and  interrogatories  to 
give  such  account,  as  agent. 

It  is  true,  the  fact  of  his  having  become,  and  having  acted 
as  agent  is  alleged;  but  it  is  not  averred  that  he  received  money 
as  agent ;  arid  in  the  interrogating  part  of  the  bill,  the  defend- 
ant is  called  upon  to  give  a  particular  and  detailed  account  of 
the  business  of  the  trusts,  showing  the  amounts  received,  and 
payments   made  from  the  trust  funds.     He  is  not  required  to 
give  such  an  account  as  agent,  or  trustee,  as  the  exception  as- 
sumes ;  but  simply  an  account  of  the  business  of  the  trust ;  and 
there  is  nothing  in  the  bill  which  negatives  the   idea  that  the 
defendant  had  not  settled  his  account,  as  agent,  with  his  prin- 
cipals, the  original  trustees,  as  it  was  his  duty  to  do.     The  court 
must  see,  by  referring  to  the  bill  alone,  in  connexion  with  the 
exception,  that  the  precise  matters  as  to  which  a  further  answer 
is  sought,  are  stated  in  the  bill,  or  that  such  an  answer  is  called 
for  by  the  interrogatories.     Such  is  the  principle  settled  by  the 
case  of  Stafford  vs.  Brown,  4  Paige,  88,  before  referred  to,  in 
which  the  authorities  upon  the  point  seem  to  have  been  carefully 
examined ;  and  such,  in  my  opinion,  should  be  the  rule.     A 
plaintiff  should   not  be  allowed  to  except  to  an  answer  for  in- 
sufficiency when  his  own  bill  is  inexplicit  and  ambiguous,  and 
it  is  consequently  doubtful  what  information  he  seeks  to  obtain 
from  the  defendant. 

The  representatives  of  the  original  trustees  in  this  case  are 
not  parties  to  the  bill,  and  hence  it  might  very  fairly  be  inferred 

VOL.  1—31 


362  HIGH  COURT  OF  CHANCERY. 

that  the  business  of  the  trust,  prior  to  the  appointment  of  the 
defendant,  in  1836,  was  not  to  be  inquired  into.  Certainly,  if 
the  defendant  had  accounted  with,  and  paid  to  his  principals, 
the  original  trustees,  all  the  money  which  came  to  his  hands  as 
agent,  he  would  not  be  responsible  to  these  plaintiffs,  and, 
therefore,  when  he  alone  is  brought  before  the  court,  and  those 
trustees,  or  they  being  dead,  their  personal  representatives,  are 
not  made  parties,  he  might  very  naturally  assume  that  the  sub- 
jects to  be  investigated  in  the  cause  would  be  confined  to  his 
acts  as  trustee,  and  not  to  acts  performed  in  the  capacity  of 
agent  for  others,  who,  or  whose  representatives,  were  not 
brought  before  the  court.  To  those  original  trustees  the  de- 
fendant was  certainly  per  directum,  liable,  and  though  as  this 
case  now  stands,  it  may  be  that  the  cestique  trusts  are  entitled 
to  proceed  directly  against  the  defendant  in  respect  of  his  trans- 
actions as  agent,  (a  point  not  now  meant  to  be  decided,)  yet 
certainly  when  the  original  trustees,  or  those  who  now  repre- 
sent them,  are  not  made  parties,  the  bill  if  it  meant  to  call  the 
defendant  to  account  in  the  double  capacity  of  agent  and  trus- 
tee, should  do  so  in  terms  free  from  ambiguity  or  equivocation. 
This  bill,  in  my  judgment,  does  not  do  so.  It  calls  upon  the 
defendant  for  a  detailed  account  of  the  business  of  the  trust,  but 
does  not  call  upon  him  for  an  account  of  the  business  of  the 
trust  and  agency,  for  the  failure  to  render  which  the  exception 
is  taken. 

The  bill,  it  is  true,  speaks  of  both  the  trust  and  the  agency, 
and  very  properly  distinguishes  between  them ;  but  the  inter- 
rogating part  seems  to  be  confined  to  a  call  for  information, 
and  an  account  with  regard  to  the  trust,  and  the  defendant 
might  very  readily  and  naturally  have  supposed  that  the  only 
relief  sought  against  him  was  in  his  character  as  trustee  ;  and 
it  may  have  been  from  that  impression  that  he  submitted  to 
answer,  instead  of  demurring.  If  by  joining  these  two  matters 
the  bill  would  have  been  multifarious,  and  the  defendant  by  the 
ambiguous  manner  in  which  they  are  presented,  has  been  in- 
duced to  forego  that  mode  of  defence,  and  must  now  give  full 
and  explicit  answers  to  what  was  not  fully  and  explicitly  stat- 


SMALL  VS.  OWINGS.  363 

ed,  he  has  been  placed  in  a  position  of  disadvantage  which 
more  clearness  in  stating  the  plaintiffs'  case,  and  their  object, 
would  have  relieved  him  from.  It  is  not  meant  to  be  said,  that 
these  matters  of  the  trust,  and  agency,  are  so  distinct  and  un- 
connected as  to  make  it  improper  to  unite  them  in  the  same  bill; 
but  if  it  was  intended  to  join  them,  it  should  have  been  done 
in  a  plain  manner,  that  the  defendant  might  have  shaped  his 
course  accordingly,  under  the  advice  of  his  counsel. 
The  exception  must  be  overruled. 

[No  appeal  was  taken  from  this  order.] 


PHILIP  A.  SMALL  ET  AL. 

vs. 

IARLOTTE    C.    D.    OWIN 
AND  RICHARD  GREEN. 


vs-  >      DECEMBER  TERM,  1848. 

CHARLOTTE    C.    D.    OWINGS    ( 


[AUTHORITY  OF  AGENT — PLEADING — ALLEGATION  OF  PART   PERFORMANCE — SPE- 
CIFIC   PERFORMANCE STATUTE    OF   FRAUDS.] 

THE  authority  of  an  agent  to  make  an  agreement  for  his  principal,  need  not  be 
in  writing. 

Where  a  party  sets  up  an  agreement  in  his  bill,  invalid  under  the  statute  of 
frauds,  and  the  defendant  by  his  answer,  denies  the  agreement,  it  is  not,  per- 
haps, necessary  for  him  to  insist  upon  the  statute  as  a  bar  ;  but,  the  complain- 
ant at  the  hearing,  must  establish  the  agreement  by  written  evidence. 

If  the  defendant  admits,  in  his  answer,  the  parol  agreement,  without  'insisting 
on  the  statute,  the  court  will  decree  a  specific  performance,  upon  the  ground 
that  the  defendant  has  thereby  renounced  the  benefit  of  the  statute. 

The  principles  that  regulate  equity  pleadings,  will  admit  a  different  interpreta- 
tion sometimes  to  be  put  upon  a  particular  sentence,  than  would  be  required 
by  grammatical  rule. 

The  complainant  cannot  rely  upon  the  admissions  of  the  answer,  and  obtain 
relief  upon  those  admissions,  unless  he  has  set  them  out  in  his  bill. 

A  complainant  in  his  bill,  must  put  in  issue  whatever  he  intends  proving,  other- 
wise the  evidence  will  be  excluded.  The  Court  of  Chancery  decrees  only 
secundum  alegata  et  probata. 

There  being  no  allegation  in  the  bill  of  part  performance,  the  evidence  seeking 
to  establish  such  part  "performance,  was  excluded. 

The  ground  upon  which  a  court  of  equity  decrees  the  specific  performance  of  a 
parol  agreement,  respecting  lands,  is,  that  in  case  of  a  clear  part  perform- 


364  HIGH    COURT  OF   CHANCERY. 

ance  by  one  party,  it  would  be  a  fraud  in  the  other,  to  refuse  to  perform  the 
agreement  on  his  part.  It  would  be  perverting  the  statute,  from  a  shield 
against,  into  an  instrument  of  fraud. 

When  acts  of  part  performance  are  relied  upon  to  take  a  parol  agreement  for 
the  sale  of  lands,  (when  denied  by  the  owner,)  out  of  the  operation  of  the 
statute  of  frauds,  full  and  satisfactory  evidence  must  be  offered  of  the  terms 
of  the  agreement,  and  of  the  performance  of  it,  on  the  part  of  the  complainant. 


[The  object  of  this  bill  was  to  obtain  a  decree  against  the 
defendant,  Charlotte  C.  D.  Owings  for  the  specific  performance 
of  an  alleged  contract  to  sell  certain  land;  and  an  injunction 
against  the  other  defendant,  Green,  to  restrain  him  from  in- 
terfering with  the  complainants  in  their  occupancy  and  enjoy- 
ment thereof. 

The  bill  alleged,  that  a  contract  was  made  between  the  par- 
ties on  the  8th  of  July,  1844,  to  sell  a  portion  of  the  land,  and, 
that  by  a  subsequent  arrangement,  the  complainants  purchased 
of  the  defendant,  Owings,  through  her  agent  Turnbull,  six 
acres  of  land,  including  that  which  was  the  subject  of  the  first 
contract.  The  complainants  filed  with  their  bill,  copies  of  the 
letter  and  deposition  of  Turnbull,  showing  the  purchase  ;  and 
further  stated,  that  the  defendant,  Green,  combining  with  his 
co-defendant,  Owings,  to  vex  and  harrass  the  complainants, 
had  entered  on  the  land,  and  erected  a  fence  on  part  thereof; 
had  been  digging  and  removing  ore  therefrom ;  and  had  hin- 
dered the  complainants  in  the  performance  of  their  operations. 

The  bill  prayed,  that  the  defendant,  Owings,  might  be  de- 
creed to  convey  the  land  to  the  complainants,  and,  that  Green, 
might  be  restrained  by  injunction  from  putting  up  fences  on  the 
land  and  digging  ore,  &c. 

The  deposition  of  Turnbull,  set  out  the  arrangements  made 
in  June,  1845,  by  him,  acting  for  Miss  Owings,  with  the  com- 
plainants, to  settle  the  difficulty  arising  from  a  misunderstand- 
ing of  the  previous  contract ;  and  stated,  that  these  arrange- 
ments with  the  approbation  of  Miss  Owings,  resulted  in  the 
second  agreement,  which  was  to  let  the  complainants  have  six 
acres  of  land  for  $2000. 

The  agreement  of  the  8th  of  July,  1844,   reserved  to  Miss 


SMALL  VS.  OWINGS.  365 

Owings,  all  the  wood  on  the  land,  and  the  reversion  of  the 
land  with  the  improvements,  after  all  the  ore  should  be  taken 
out  of  it. 

The  answer  of  Miss  Owings,  admitted  that  she  signed  the 
agreement  of  the  8th  of  July,  1844,  but  stated,  that  she  was 
induced  so  to  do  by  the  misrepresentations  of  Geiger,  the  com- 
plainant's agent,  in  reference  to  the  land  to  be  conveyed,  that 
she  supposed  she  was  selling  five  acres  at  $400  per  acre,  when 
in  fact,  the  tract  contained  but  two  acres  ;  and,  that  he  also 
misrepresented  to  her  the  determination  of  Green,  regarding  a 
previous  contract  made  by  her  with  him.  And  she  stated, 
that  on  detecting  the  fraud  practiced  on  her,  she  forbade  Gei- 
ger to  enter  on  the  land,  which  he  did  notwithstanding. 

She  denied,  that  she  had  authorized  Turnbull  to  make  any 
contract  for  her,  or  that  she  had  ever  entertained  the  intention 
of  entrusting  any  of  her  interests  to  his  agency  ;  and  said,  that 
"to  protect  herself  from  any  such  allegation,  (as  well  as  deny- 
ing the  same  to  be  true,)  she  alleges,  that  there  is  no  writing 
signed  by  her  to  that  effect,  and  she  relies  upon,  and  pleads 
the  statute  commonly  called  the  statute  of  frauds." 

The  Chancellor,  in  delivering  his  opinion,  after  stating  the 
case,  said  :] 

THE  CHANCELLOR  : 

With  regard  to  the  contract  of  the  8th  of  July,  1844,  as  set 
out  in  the  receipt  of  that  date,  I  do  not  deem  it  necessary  to 
express  any  opinion,  as  it  is  manifest,  that  that  contract,  what- 
ever its  character  may  have  been — whether  obtained  by  false 
and  fraudulent  representations  or  not — has  been  merged  in  the 
subsequent  agreement  of  July,  1845  ;  which  subsequent  agree- 
ment alone,  this  bill  seeks  to  enforce.  And  the  question,  there- 
fore, is,  whether  the  complainants  have  made  out  a  case  which 
entitles  them  to  the  aid  of  this  court  in  compelling  the  specific 
performance,  by  the  defendant  Owings,  of  this  latter  agree- 
ment. 

It  is  urged  by  the  complainants'  counsel,  that  the  defendant, 
Owings,  cannot  protect  herself  under  the  plea  of  the  statute  of 
31* 


366  HIGH  COURT  OF  CHANCERY. 

frauds,  because,  in  her  answer,  in  which  reliance  is  placed 
upon  the  statute,  it  is  levelled,  not  at  the  agreement  which  the 
bill  seeks  to  enforce,  but  at  the  authority  of  the  agent,  Turn- 
bull,  to  make  that  agreement ;  and  as  the  cases  show  that  the 
authority  of  the  agent  need  not  be  in  writing,  the  statute  has 
no  application  to  the  case. 

It  is  not,  however,  I  think,  altogether  clear,  that  in  a  case 
like  the  present,  the  defendant  was  bound  to  insist  upon  the 
statute  of  frauds  at  all.  The  answer  certainly  denies  the 
authority  of  Turnbull,  to  make  any  agreement  for  the  defend- 
ant, and,  therefore,  denies  that  any  agreement  binding  upon 
her  was  made ;  and  under  such  circumstances,  it  is  by  no 
means  certain,  that  she  is  not  entitled  to  the  benefit  of  the 
statute  of  frauds,  without  pleading  it.  In  the  case  of  the 
Ontario  Bank  vs.  Root,  3  Paige,  478,  it  was  decided,  that 
where  the  complainant  sets  up  an  agreement  in  his  bill,  which 
would  be  invalid  by  the  statute  of  frauds,  unless  in  writing, 
and  the  defendant  by  his  answer  denies  the  agreement,  it  is  not 
necessary  for  him  to  insist  upon  the  statute  as  a  bar,  but  the 
complainant  at  the  hearing  must  establish  the  agreement  by 
written  evidence. 

If,  however,  the  defendant  in  his  answer  admits  the  parol 
agreement,  without  insisting  on  the  statute,  the  court  will  de- 
cree a  specific  performance,  upon  the  ground,  that  the  defend- 
ant has  thereby  renounced  the  benefit  of  the  statute.  Story's 
Equity  PL,  sec.  763;  Blayden  vs.  Bradbear,  12  Ves.,  471  ; 
Cozine  vs.  Graham,  2  Paige,  177 ;  Jones  vs.  Sluby,  5  H.  # 
/.,  372. 

In  this  case  the  defendant  certainly  has  not  admitted  the 
agreement  set  up  in  the  bill ;  and,  as  that  agreement,  being  by 
parol,  and  affecting  lands,  is  invalid  by  the  statute  of  frauds,  it 
is  not  so  clear,  that  the  defendant  may  not  claim  the  benefit  of 
the  statute  at  the  hearing,  even  though  she  has  not  insisted 
upon  it  as  a  bar. 

But  I  am  inclined  to  think,  that  the  statute  is  relied  upon  in 
the  answer  in  this  case. 

Perhaps,  giving  a  strictly  grammatical  construction  to  that 


SMALL  VS.  OWINGS.  367 

part  of  the  answer  in  which  the  statute  is  interposed  as  a  de- 
fence, it  would  be  more  properly  applied  to  the  authority  of  the 
agent,  than  to  the  agreement,  which  it  is  said  the  agent  made. 
But,  when  it  is  recollected,  that  the  authority  of  the  agent  need 
not  be  in  writing,  and,  that  a  plea  of  the  statute,  upon  that 
ground,  would  be  ineffectual,  it  would  seem  to  be  consonant 
with  those  principles  which  regulate  pleadings  in  equity,  to  put 
a  different  interpretation  upon  the  sentence  than  would  be  re- 
quired by  grammatical  rule.  Birley  vs.  Staley,  5  G.  8f  «/., 
432. 

This,  then,  being  an  agreement  clearly  within  the  statute  of 
frauds,  it  remains  to  be  seen,  whether  the  complainants  have 
succeeded  in  bringing  their  case  within  the  exception  of  the 
rule,  that  such  agreements  cannot  be  made  out  by  parol  proof, 
by  showing  a  part  performance  of  the  contract ;  for  there  can 
be  no  doubt,  that  such  part  performance  will  take  cases  out  of 
the  operation  of  the  statute.  Moale,  et  al.  vs.  Buchanan,  etal., 
11  G.  Sf  /.,  314;  Hall  and  wife  vs.  Hall  et  al.,  1  Gill,  383. 

It  has  been  insisted  by  the  counsel  for  the  complainants, 
that  though  the  defendant  has  denied  the  agreement  set  up  in 
the  bill,  she  has  admitted  an  agreement  to  sell  five  acres  of 
land  to  the  complainants  ;  and  that,  to  that  extent  at  least  they 
are  entitled  to  relief.  And  the  case  of  Graham  et  ux.,  against 
Yates  and  others,  is  referred  to  as  an  authority  for  the  position. 
In  that  case,  however,  it  does  not  clearly  appear,  whether 
the  agreement  was  or  was  not  in  writing.  The  statute  of 
frauds  does  not,  from  the  report  of  the  case  appear  to  be  relied 
on,  and  the  defendants  in  their  answer  express  their  willingness 
to  convey  that  part  of  the  property,  admitted  to  have  been  sold, 
upon  receiving  the  purchase  money  and  interest. 

The  case,  therefore,  is  not  an  authority  for  the  position  that 
the  complainants  may,  as  a  general  rule,  rely  upon  the  admis- 
sions of  the  answer,  and  obtain  relief  on  those  admissions, 
unless  they  have  set  them  forth  in  their  bill.  The  contrary 
doctrine  was  expressly  decided  in  Jackson  vs.  Jlshton,  11 
Peters,  S.  C.  Reports,  229,  and  I  have  seen  no  case  maintain- 
ing a  different  rule. 


368  HIGH  COURT  OF  CHANCERY. 

It  is  stated  by  Mr.  Justice  Story,  in  his  Treatise  on  Equity 
Pleadings,  sec.  257,  "that  every  fact  essential  to  the  plaintiff's 
title  to  maintain  the  bill,  and  obtain  relief,  must  be  stated  in 
the  bill,  and  of  course  no  proof  can  be  generally  offered  of  facts 
not  in  the  bill ;  nor  can  relief  be  granted  for  matters  not 
charged,  although  they  may  be  apparent  from  other  parts  of  the 
pleadings  and  evidence,  for  the  court  pronounces  its  decree, 
secundum  allegata  etprobata"  And  in  section  28  of  the  same 
work,  the  author  says,  "it  may  be  proper,  however,  to  remark, 
that  every  material  fact,  to  which  the  plaintiff  means  to  offer 
evidence,  ought  to  be  distinctly  stated  in  the  premises,  for 
otherwise,  he  will  not  be  permitted  to  offer  or  require  any  evi- 
dence of  such  fact." 

These  principles  have  been  repeatedly  sanctioned  by  the 
Court  of  Appeals  of  this  state,  and  the  rule  cannot  be  question- 
edj  that  a  complainant  in  his  bill,  must  put  in  issue  whatever 
he  intends  proving,  otherwise,  the  evidence  will  be  excluded. 
The  Court  of  Chancery  decrees  only  secundum  allegata  etpro- 
bata.  Haywood  vs.  Carroll,  4  H.  if  «/.,  518. 

This  rule  is  necessary  not  only  to  prevent  surprise,  but  the 
abrogation  of  it  would  enable  the  complainant  to  take  from  his 
adversary  the  benefit  of  his  answer,  which,  if  responsive  to  the 
averments  of  the  bill,  would  require  a  stronger  measure  of  evi- 
dence to  overcome,  than  if  the  fact  to  be  proved  was  not  no- 
ticed in  the  pleadings. 

In  the  treatise,  of  Mr.  Justice  Story,  already  referred  to,  sec. 
264,  the  rule  is  pressed  still  further;  it  being  there  said,  "that 
if  an  admission  is  made  in  the  answer,  it  will  be  of  no  use  to 
the  plaintiff,  unless  it  is  put  in  issue  by  the  bill ;  and  the  con- 
sequence is,  that  the  plaintiff  is  frequently  obliged  to  ask  leave 
to  amend  his  bill,  although  a  clear  case  for  relief  is  apparent 
upon  the  face  of  the  pleadings." 

In  this  case,  the  evidence  of  all  the  acts  of  part  performance 
which  are  relied  upon,  to  save  the  alleged  agreement  from  the 
operation  of  the  statute  of  frauds,  is  excepted  to  by  the  defend- 
ants, "upon  the  ground,  that  the  bill  of  the  complainants 
alleges  no  part  performance  of  said  supposed  contract  or  agree- 


SMALL  VS.  OWINGS.  369 

ment."  And  it  is  clear,  upon  the  authorities  which  have  been 
cited,  that  if  the  bill  does  not  contain  such  allegation,  the  evi- 
dence is  inadmissible,  and  must  be  excluded. 

Upon  examining  the  bill  in  this  case,  it  will  be  found  to  be 
destitute  of  any  averment  of  part  performance  of  the  agree- 
ment, the  specific  execution  of  which,  it  seeks  to  have  enforced. 
There  is  no  allegation  in  it,  or  in  either  of  the  exhibits  filed 
with  it,  of  payment  of  any  part  of  the  purchase  money,  or  of  the 
delivery  of  possession,  or  of  any  other  act  which  can  by  possi- 
bility be  regarded  as  a  part  performance  of  the  contract.  The 
act  of  part  performance,  it  is  to  be  remembered,  "must  not  be 
merely  introductory,  or  ancillary  to  the  agreement,  but  a  part 
execution  of  the  substance  of  the  agreement,  and  which  would 
not  have  been  done,  unless  on  account  of  the  agreement ;  an 
act  unequivocally  referring  to,  and  resulting  from  the  agree- 
ment, and  such  as  the  party  would  suffer  an  injury  from, 
amounting  to  fraud  by  the  refusal  to  execute  the  agreement." 
And  unless  an  act,  or  acts  of  this  kind,  are  charged  in  the  bill, 
and  proved  or  admitted,  the  court  will  not  decree  a  specific 
execution  of,the  agreement. 

The  bill  simply  alleges,  that  the  complainants  purchased  of 
the  defendant,  Owings,  through  her  agent,  Alexander  Turn- 
bull,  about  six  acres  of  ground,  including  the  piece  first  pur- 
chased, and  which  six  acres  are  described  in  a  plat  filed  with 
the  bill ;  but  it  does  not  allege,  that  one  dollar  of  the  purchase 
money  was  paid  to  the  vendor,  or  that  they,  the  vendees,  were 
placed  in,  or  took  possession  of,  or  made  improvements,  or  ex- 
pended money  on  the  property,  or  did,  or  suffered  any  act, 
whatever,  which  could  by  any  possibility  be  injurious  to  them, 
in  case  the  contract  remains  unexecuted.  The  ground  upon 
which  the  court  proceeds,  in  decreeing  the  specific  performance 
of  a  parol  agreement  in  relation  to  lands,  notwithstanding  the 
statute  of  frauds  is,  that  in  the  case  of  a  clear  part  performance 
of  such  an  agreement  by  one  party,  it  would  be  a  fraud  in  the 
other  to  refuse  to  perform  the  agreement  on  his  part.  It  would 
be  perverting  the  statute  from  a  shield  against,  into  an  instru- 
ment of  fraud.  Hamilton  vs.  Jones ',  3  G.  fy  /.,  127;  Mary- 


370  HIGH  COURT  OF   CHANCERY. 

land  Savings  Bank  vs.  Schroeder,  8  G.  #  •/•>  93  ;  Moale  vs. 
Buchanan,  11  G.  #  J.,  314. 

Without  meaning  to  express  any  opinion  upon  the  character 
and  weight  of  the  evidence  of  the  acts  of  part  performance,  relied 
upon  by  the  plaintiffs,  to  take  this  case  out  of  the  operation  of 
the  statute  of  frauds ;  assuming,  that  they  had  by  the  frame  of 
their  bill,  entitled  themselves  to  introduce  such  evidence,  I  am 
clearly  of  opinion,  that  the  evidence  is  inadmissible,  as  not 
being  within  any  issue  presented  by  the  bill  ;  or  indeed  by  the 
pleadings  on  either  side.  No  act  of  part  performance  has  been 
alleged,  and  none  can  be  proved,  and,  therefore,  it  follows 
that  the  complainants  cannot  have  the  relief  they  seek  by  their 
bill. 

The  agreement  also,  in  this  case,  might  perhaps  be  regarded 
as  deficient,  in  that  decree  of  certainty  and  precision  which 
would  be  required  to  enable  the  court  to  decree  its  specific  ex- 
ecution. 

When  acts  of  part  performance  are  relied  upon  to  take  a 
parol  agreement  for  the  sale  of  lands,  when  denied  by  the 
answer,  out  of  the  operation  of  the  statute  of  frauds,  full  and 
satisfactory  evidence  must  be  offered  of  the  terms  of  the  agree- 
ment, and  of  the  performance  of  it,  on  the  part  of  the  com- 
plainant. Hall  vs.  Hall,  I  Gill,  383. 

A  court  of  equity  will  not  defeat  the  salutary  intent  of  the 
statute  of  frauds,  and  it  will  not  enforce  a  parol  contract  for 
conveyance  of  land,  even  where  the  possession  thereof,  has 
been  delivered,  where  it  does  not  clearly  appear  what  the  con- 
tract was.  Wingate  vs.  Bail,  2  Harr.  fy  Johns.,  76. 

In  this  case  we  have  seen,  that  by  the  contract  of  July,  1844, 
the  fee  in  the  land  therein  described,  was  not  to  be  conveyed 
to  the  complainants.  On  the  contrary,  the  agreement  in  terms 
provides,  that  when  the  ore  should  be  taken  out  of  the  land, 
the  land  itself  was  to  revert  to  the  vendor,  Miss  Owings. 

In  the  subsequent  parol  agreement  of  1845,  and  which  was 
for  the  purchase  of  six  acres,  the  two  acres  comprehended  in 
the  first  purchase  were  embraced  ;  and  it  may  not,  perhaps, 
be  regarded  as  a  very  violent  presumption,  to  suppose  that  the 


GEORGES  CREEK  COMPANY  VS.  DETMOLD.  371 

contract  in  relation  to  the  six  acres,  was  similar  in  its  terms  to 
the  contract  in  relation  to  the  two  acres.  That  is,  that  when 
the  iron  ore  should  be  removed  from  the  land,  the  land  itself 
should  revert  to  the  vendor.  And,  indeed,  when  it  is  manifest 
from  the  whole  case,  that  the  land  was  only  desirable  to  the 
plaintiffs  on  account  of  the  ore  it  contained,  it  is  not  at  all  im- 
probable, that  such  was  the  agreement  of  the  parties.  But,  at 
all  events,  it  is  very  certain,  that  the  terms  of  the  agreement 
which  this  bill  seeks  to  have  enforced,  do  not  appear ;  and,  as 
we  have  seen,  the  law  is  settled  by  the  highest  authority  in  this 
state,  that  there  must  not  only  be  evidence  offered  fully  and  sat- 
isfactorily demonstrating  the  terms  of  the  agreeme?it ;  but,  that 
those  terms,  so  far  as  they  are  incumbent  on  the  plaintiff,  must 
be  performed  on  his  part  before  he  can  have  a  decree,  compel- 
ling performance  on  the  other  side. 

The  plaintiffs,  by  their  pleadings,  have  not  put  themselves 
in  a  condition  to  offer  this  proof;  and,  therefore,  if  they  have 
offered  any  such  point,  which  I  do  not  mean  to  decide,  they 
cannot  have  the  benefit  of  it. 

Entertaining  these  views,  I  am  of  opinion,  that  the  bill  must 
be  dismissed,  but  without  prejudice,  and  shall  pass  a  decree  ac- 
cordingly. And,  under  the  circumstances  of  the  case,  costs 
will  not  be  decreed. 

[An  appeal  was  taken  from  this  decree,  but  it  has  not  yet 
been  decided.] 


THE  GEORGES  CREEK  COAL  N 

AND  IRON  COMPANY          / 

vg  >       DECEMBER  TERM,  1848. 

CHRISTIAN  E.  DETMOLD.      ) 

[INJUNCTION — TRESPASS — WASTE — PRACTICE.] 

COURTS  of  equity  will  interfere,  by  injunction,  even  as  against  trespassers,  if 
the  acts  done,  or  threatened  to  be  done,  to  the  property,  would  be  ruinous 
and  irremediable. 

But,  an  injunction  is  not  granted  to  restrain  a  mere  trespass,  where  the  injury 


372  HIGH   COURT  OF  CHANCERY. 

is  not  irreparable  and  destructive  to  the  plaintiff's  estate  ;  but  is  susceptible 
of  perfect  pecuniary  compensation,  and  for  which  the  party  may  obtain  ade- 
quate satisfaction  in  the  ordinary  course  of  law. 

In  the  case  of  waste,  where  there  is  a  privity  of  title,  as  between  tenants  for 
life,  or  years,  and  the  reversioner,  it  is  not  necessary  for  the  plaintiff  to  show 
irreparable  injury  or  destruction  to  the  estate,  to  entitle  him  to  the  remedy 
by  injunction. 

But,  as  between  strangers  or  parties  claiming  adversely,  there  is  no  distinction 
between  trespass  and  waste ;  and,  in  both  cases,  the  injury  must  be  shown 
to  be  irreparable,  before  this  court  will  grant  an  injunction. 

A  bill  filed  by  a  corporation  need  not  be  under  its  corporate  seal.  That  it  is 
the  bill  of  the  corporation,  is  sufficiently  vouched  by  the  signature  of  the  so- 
licitor, whose  authority  to  file  it  need  not  be  exhibited. 

[By  the  written  agreement  between  these  parties,  dated  the 
llth  of  October,  1845,  the  plaintiff  leased  to  the  defendant,  for 
the  term  of  seven  years,  the  furnace  erected  on  the  property  of 
the  plaintiff,  known  as  the  Lonaconing  Furnace,  together  with 
certain  rights  and  privileges  therein  enumerated. 

Then  follows  a  provision,  giving  the  defendant  exclusive 
use  of  the  worked  openings  of  the  company,  and  the  right  to 
make  other  openings,  &c.;  and  all  timber  necessary  to  the  con- 
struction and  maintenance  of  the  works,  mines  and  buildings, 
to  be  cut  under  the  direction  of  the  company.  The  defendant 
was  to  pay  a  nominal  rent  for  the  space  of  two  years  and  two 
months  from  the  date  of  the  agreement,  after  which  period  he 
was  to  pay  for  the  property,  rights  and  privileges  aforesaid,  at 
the  rate  of  one  dollar  per  ton  for  pig  or  cast  iron,  in  full  for  all 
materials  mined  by  him  and  used  in  the  manufacture  of  iron  ; 
and  for  minerals  and  materials  mined  by  him  and  sold  to  other 
persons  he  was  to  pay  a  mine  rent  of  twenty-five  cents  per  ton. 
It  was  further  agreed,  "that  should  a  rail  or  other  road  be  made 
by  the  company  from  the  works  at  Lonaconing  to  the  rail  road 
now  being  constructed  by  the  Maryland  Mining  Company,  at 
any  time  within  the  said  two  years  and  two  months,  then  the  said 
rent  of  one  dollar  per  ton  should  become  payable  on  the  com- 
pletion of  said  road,  provided,  the  transportation  on  said  road  be 
done  for  the  defendant  by  the  company,  at  a  rate  not  exceeding 
two  cents  and  a  half  per  ton  per  mile." 

It  was  also  agreed,  "that  the  said  Detmold  should  be  per- 


GEORGES  CREEK  COMPANY  VS.  DETMOLD.     373 

mitted  to  make  tram  and  other  roads  for  the  transportation  of 
materials  to  and  from  the  furnace  and  mines,  but  not  so  as  to 
interfere  with  existing  roads,"  &c. 

There  was  a  further  stipulation,  that  the  defendant  should 
have  the  right  to  put  up  additional  blast  furnaces,  &c.;  and,  it 
was  provided,  that  if  during  the  term  of  the  agreement,  the  de- 
fendant should  erect  works  for  the  manufacture  of  bar  or  mal- 
leable iron,  then  the  company  stipulated  to  execute  to  him  a  lease 
of  ninety-nine  years,  renewable  forever.  There  was  then  a 
provision,  that  at  the  expiration  of  seven  years,  (unless  defend- 
ant should  entitle  himself  to  a  renewable  lease  for  ninety-nine 
years,)  that  the  improvements  and  erections  made  by  the  de- 
fendant, (except  dwelling  houses,)  and  all  rail  or  tram  roads, 
other  than  those  made  with  the  tram-plates  furnished  by  the 
company,  should  be  restored  by  the  defendant  to  the  company, 
at  a  valuation  to  be  put  upon  them  by  disinterested  parties. 

The  defendant  took  possession  under  this  agreement,  and  so 
continues  to  the  present  time  ;  but,  on  the  5th  of  September 
last,  the  complainant  filed  a  bill  in  this  court,  charging  the  de- 
fendant with  various  acts,  alleged  to  be  violations  of  the  con- 
tract, and  of  a  nature  which,  in  the  opinion  of  the  court,  enti- 
tled the  plaintiff  to  an  injunction  to  prevent  their  repetition. 

These  acts  were,  first,  the  cutting  down  of  wood  and  tim- 
ber upon  the  lands  of  the  plaintiff,  for  the  purpose  of  erecting 
and  constructing  a  saw  mill,  on  ground  adjacent  to  the  furnace 
and  steam  engine  by  which  the  furnace  is  worked,  with  the  de- 
sign, of  employing  the  engine  in  working  the  saw  mill  ;  and 
secondly,  in  cutting  down  wood  and  timber  for  the  purpose  of 
making  a  rail  or  tram  road  from  the  furnace,  through  the  lands 
of  the  complainant,  and  other  intervening  lands  of  other  parties 
to  the  rail  road  of  the  Maryland  Mining  Company,  distant  about 
seven  miles  from  the  furnace,  and  not  touching  at  any  point  the 
lands  of  the  complainant. 

The  bill  alleges,  that  the  agreement  gives  the  defendant  no 

authority  to  erect  a  saw  mill  on  the  lands  of  the  complainant, 

or  to  cut  wood  and  timber  thereon  for  that  purpose,  or  to  make 

a  rail  or  a  tram  road,  of  which  the  termini  are  not  at  the  fur- 

VOL.  i — 32 


374  HIGH  COURT  OF  CHANCERY. 

nace  and  at  a  mine,  and  which  may  not  be  necessary  for  the 
transportation  of  materials  from  the  one  terminus  to  the  other; 
and,  that  the  defendant  is  not  authorized  to  make  a  road  for  the 
transportation  of  iron,  the  product  of  a  furnace,  to  a  market, 
which,  the  bill  alleges,  is  the  sole  object  in  making  the  road 
in  question. 

It  further  alleges,  that  the  lands  have  been  already  greatly 
wasted;  and,  that  if  the  defendant  is  not  restrained  by  the  au- 
thority of  this  court,  they  will  be  irreparably  wasted  and  in- 
jured, by  cutting  down  and  removing  large  masses  of  wood  and 
timber,  which  defendant  has  already  cut,  and  is  yet  engaged 
in  cutting,  so  as,  in  the  apprehension  of  the  complainant,  there 
will  not  be  left  upon  the  lands  a  sufficiency  for  its  purposes,  as 
an  appendage  to  the  furnace. 

The  bill,  then,  after  charging  that  the  defendant  "had,  in  the 
prosecution  of  his  purpose  to  make  the  road,  entered  upon  lands 
rented  to  other  persons,  and,  thereby,  impeded  the  complainant 
in  collecting  the  rents,  proceeds  to  charge  that  the  erection  and 
employment  of  the  saw  mill  in  the  immediate  vicinity  of  the 
steam  engine,  furnace  and  their  dependant  improvements,  will 
expose  them  all  to  great  hazard  of  loss,  by  fire,  against  which, 
there  can  be  no  adequate  security. 

An  injunction  was  granted  upon  this  bill,  prohibiting  the  de- 
fendant from  cutting  down  wood  and  timber,  upon  the  lands  of 
the  plaintiff,  for  the  purpose  of  constructing  the  saw  mill,  or 
making  a  tram  or  rail  road  from  the  furnace  to  the  rail  road  of 
the  Maryland  Mining  Company,  or  in  any  other  direction,  ex- 
cept to  a  mine  on  the  lands  of  the  plaintiff,  or  for  any  purpose 
other  than  the  transportation  of  materials  to  and  from  said  fur- 
nace and  mine. 

Upon  the  argument  of  the  motion  to  dissolve  the  injunction, 
the  Chancellor,  after  making  a  statement  of  the  facts  of  the 
case,  of  which  the  above  is  in  substance  a  copy,  said  :] 

THE  CHANCELLOR  : 

This  injunction,  in  the  view  taken  by  me  at  the  time,  rested 
upon  two  very  sufficient  grounds,  assuming  the  contract  did 


GEORGES  CREEK  COMPANY  VS.  DETMOLD.      375 

not  authorize  the  defendant  to  erect  a  saw  mill,  in  the  particu- 
lar location  selected  for  it,  nor  to  make  a  rail  or  tram  road,  and 
to  cut  wood  and  timber  for  the  purpose  upon  the  lands  of  the 
plaintiff,  to  connect  with  the  road  of  the  Maryland  Mining  Com- 
pany. These  grounds  were,  the  danger  to  which  the  furnace 
and  its  dependant  improvements  would  be  exposed  from  fire, 
by  the  erection  and  working  of  the  saw  mill  in  their  immediate 
vicinity ;  and  the  'destruction  of  wood  and  timber  to  such  an 
extent,  as  to  leave  the  lands  without  an  adequate  supply  for  its 
purposes,  as  an  appendage  to  the  furnace. 

It  seemed  to  me  very  clear,  that  in  whatever  light  the  defend- 
ant might  be  viewed,  whether  as  a  mere  stranger  and  trespass- 
er, or  whether  there  was  privity  of  title  between  him  and  the 
complainant,  the  acts  complained  of  were  of  that  irreparably 
ruinous  and  destructive  character,  as  to  call  for  the  preventive 
interposition  of  this  court.  There  was  a  period,  to  be  sure, 
•when  the  courts  were  extremely  reluctant,  if  not  absolutely  un- 
willing to  interfere  at  all,  as  against  a  mere  trespasser,  however 
grievous  the  injury  might  be,  upon  the  ground,  as  observed  by 
Lord  Thurlow,  that  the  defendant  being  a  mere  stranger,  might 
be  turned  out  of  the  possession  immediately. 

But,  there  seems  now  to  be  no  hesitation,  whatever,  to  inter- 
fere, by  injunction,  even  as  against  trespassers,  if  the  acts  done 
or  threatened  to  the  property  would  be  ruinous  and  irremedia- 
ble. 2  Story^s  Equity,  sees.  928,  929 ;  Eden  on  Injunctions, 
193. 

Chancellor  Kent  says,  in  Jerome  vs.  Ross,  7  Johns.  Ch.  Rep., 
333,  that  the  common  law  remedy  by  action  and  the  assessment 
of  damages  by  a  jury,  is,  in  ordinary  cases  of  trespass,  found  to 
be  amply  sufficient  for  the  protection  of  property  ;  and,  that  it 
was  not  advisable  to  introduce  the  chancery  remedy,  by  injunc- 
tion, and  to  call  forth  the  power  of  the  court,  by  attachment, 
fine  and  imprisonment,  except  in  strong  and  aggravated  in- 
stance of  trespass,  which  go  to  the  destruction  of  the  inheritance, 
or  where  the  mischief  is  remediless.  He  further  observed,  in 
the  same  case,  that  it  is  not  sufficient,  that  the  act  be  simply 
per  se  a  trespass  ;  but,  it  must  be  a  case  of  mischief,  and  of  ir- 


376  HIGH   COURT  OF  CHANCERY. 

reparable  ruin  to  the  property,  in  the  character  in  which  it  has 
been  enjoyed. 

And,  the  Court  of  Appeals  of  this  state,  in  the  case  of  Ame- 
lung  vs.  Seekamp,  9  G.  fy  /.,  468,  adopting  the  language  of 
Chancellor  Kent,  in  Jerome  vs.  Ross,  say,  "that  an  injunction 
is  not  granted  to  restrain  a  mere  trespass,  where  the  injury  is 
not  irreparable  and  destructive  to  the  plaintiff's  estate  ;  but,  is 
susceptible  of  perfect  pecuniary  compensalion,  and  for  which 
the  party  may  obtain  adequate  satisfaction  in  the  ordinary  course 
of  law. 

I  thought  it,  therefore,  quite  manifest,  that  if  the  erection  and 
working  a  saw  mill,  in  the  immediate  vicinity  of  the  plaintiff's 
furnace,  and  its  dependent  improvements  exposed  them,  as  al- 
leged, to  great  hazard  by  fire,  and  if  the  destruction  of  wood 
and  timber,  for  making  the  road,  would  be  so  considerable  as 
to  leave  an  insufficient  supply  upon  the  lands,  as  an  appendage 
to  the  furnace;  and  assuming,  as  I  did  then  assume,  that  the 
agreement  between  the  parties  gave  the  defendant  no  authority 
for  these  acts,  that  a  clear  case  was  made  out  for  an  injunction. 
It  was  a  case  of  irreparable  ruin  to  the  property  in  the  charac- 
ter in  which  it  had  been  held  and  enjoyed,  and  not  susceptible 
of  perfect  pecuniary  compensation. 

Much  of  the  argument  upon  the  motion  to  dissolve  the  in- 
junction has  turned  upon  the  construction  of  the  contract ;  and 
I  am  free  to  confess,  that  there  is  much  difficulty  in  putting  an 
interpretation  upon  it  which  will  reconcile  its  various  provisions 
and  make  it  conform  to  what  may,  reasonably,  be  supposed  to 
have  been  in  the  contemplation  of  the  parties  at  the  time  it  was 
made. 

Looking,  exclusively,  to  the  5th  article  of  the  agreement, 
and  it  would  seem  very  clear,  that  the  defendant  could  make 
no  tram  or  other  road,  except  for  the  transportation  of  mate- 
rials to  and  from  the  furnace  and  mines  ;  and  yet,  there  are 
other  provisions,  from  which  the  inference  is  very  strong,  that 
the  right  to  make  a  road,  by  which  the  defendant  could  reach 
a  market,  was  intended  to  be  reserved  to  him.  He  had  a  right, 
for  example,  to  mine  and  sell  minerals  and  materials  to  other 


GEORGES  CREEK  COMPANY  VS.  DETMOLD.      377 

persons,  upon  paying  a  stipulated  mine  rent  to  the  plaintiffs, 
and  a  road,  the  termini  of  which  should  be  a  mine  and  the  fur- 
nace, would  avail  him  nothing,  so  far  as  this  right  is  concerned. 
Again,  the  rent  to  be  paid  by  the  defendant  was  to  be  nominal 
for  two  years  and  two  months,  after  which  a  substantial  rent 
was  to  be  paid  ;  but,  it  was  provided,  that  if  within  the  two 
years  and  two  months,  the  plaintiffs  should  make  a  rail  or  other 
road  from  their  works  at  Lonaconing  to  the  rail  road  of  the 
Maryland  Mining  Company,  then  the  same  identical  rent  should 
become  payable  as  would  have  become  payable  at  the  expira- 
tion of  the  said  period  of  two  years  and  two  months,  provided, 
the  transportation  on  said  road  should  be  done  by  the  plaintiff 
for  the  defendant  at  the  rate  mentioned  in  the  agreement.  It 
would  seem,  therefore,  that  the  payment  of  this  substantial  rent 
was  in  the  view  of  the  parties  connected  with  the  enjoyment  of 
the  right  to  reach  the  road  of  the  Maryland  Mining  Company, 
and  by  it  to  get  to  market. 

There  are,  however,  other  provisions  in  the  contract  which 
are  calculated  to  lead  us  to  a  different  conclusion  ;  and,  if  re- 
quired not  to  put  a  construction  upon  it,  I  would  look  carefully 
into  its  several  stipulations,  and  endeavor  to  arrive  at  the  inten- 
tions of  the  parties,  to  be  collected  from  the  entire  instrument. 
But,  I  do  not  think  the  decision  of  this  motion  requires  me  now 
to  expound  this  contract. 

If  the  defendant  was  a  mere  stranger  and  trespasser,  it  has 
been  conceded,  indeed  since  the  case  of  Amelung  vs.  Seekamp 
it  could  not  be  denied,  the  plaintiff  would  not  be  entitled  to 
what  has  been  called  the  strong  and  menacing  hand  of  an  in- 
junction, unless  he  could  show  a  case  of  great  and  irremediable 
mischief,  which  damages  could  not  compensate.  But,  it  is 
supposed,  that  as  in  this  case,  the  relation  of  landlord  and  ten- 
ant exists  ;  that  is,  there  is  privity  of  title,  that  the  court  will, 
by  injunction,  stay  the  commission  of  any  act,  which,  when 
committed,  would  be  waste  at  common  law,  and  that,  cutting 
down  timber  is  such  waste.  Chancellor  Kent  has  said,  and 
cites  authority  to  prove,  that  the  American  doctrine  on  the  sub- 
ject of  waste  is  somewhat  varied  Trom  the  English  law,  and  is 
32* 


378  HIGH  COURT  OF  CHANCERY. 

more  enlarged,  and  better  accommodated  to  the  circumstances  of 
a  new  and  growing  country.  4  Kentfs  Com.,  76. 

In  discussing  the  remedies  now  resorted  to  for  waste,  he  says, 
the  ancient  remedy  by  writ  of  estrapement,  and  writ  of  waste, 
at  common  law,  are  essentially  obsolete,  and  the  modern  prac- 
tice in  this  country  as  well  as  in  England,  is  to  have  recourse 
to  the  prompt  and  efficacious  remedy  by  an  injunction  bill,  to 
stop  the  commission  of  waste,  whtn  the  injury  would  be  irrep- 
arable, or  by  a  special  action  on  the  case,  in  the  nature  of  waste, 
to  recover  damages.  4  Kent's  Com.,  77,  78. 

But,  notwithstanding  this  remark,  which  was  made,  not  with 
reference  to  a  mere  stranger  or  trespasser,  but  as  applicable  to 
cases  in  which  there  was  privity  of  title,  I  am  of  opinion,  that 
the  court  will  interfere  much  more  readily  in  the  latter,  than  in 
the  former  case,  and,  that  it  is  only  in  the  case  of  a  mere  tres- 
pass by  a  stranger,  or  person  claiming  adversely,  that  this 
court  will  withhold  its  arm,  unless  the  trespass  be  productive 
of  irreparable  mischief  or  ruin  ;  or  to  prevent  a  multiplicity  of 
suits,  or  where  the  interposition  of  the  court  is  required  by  some 
very  special  circumstances.  Such  is  the  language  of  the  Court 
of  Appeals  in  Amelung  vs.  Seekamp,  and  the  distinction 
between  the  case  of  a  stranger  entering  upon  land  as  a  tres- 
passer, and  were  this  is  privity  of  title,  is  clearly  recognised 
by  Chancellor  Kent  himself,  in  Livingston  vs.  Livingston,  6 
Johns.  Ch.  Rep.,  497. 

The  counsel  for  the  plaintiff  insists,  that,  in  the  case  of 
waste,  it  is  not  necessary  to  show  irreparable  injury  or  destruc- 
tion to  the  estate,  to  entitle  him  to  the  remedy  by  injunction ; 
and  it  may  be,  that  such  is  the  rule,  where  there  is  privity  of 
title,  as  between  tenants  for  life  or  years,  and  the  revisioner  ; 
but,  I  am  clearly  of  opinion,  that,  as  between  strangers,  or  par- 
ties claiming  adversely,  there  is  no  such  distinction  between 
trespass  and  waste,  and  that  in  both,  under  such  circumstances, 
the  injury  must  be  shown  to  be  irreparable,  before  this  court 
will  grant  an  injunction. 

Waste  in  timber,  consists  in  cutting  down,  lopping,  topping, 
or  doing  any  act  whereby  it  nSay  be  brought  to  decay,  Coke 


GEORGES  CREEK  COMPANY  VS.  DETMOLD.  379 

Lit.,  53  A. ;  and  yet  it  is  impossible  to  maintain,  that  such 
waste,  if  committed  by  a  mere  stranger  and  trespasser,  would 
justify  this  court  in  granting  an  injunction,  unless  it  could  be 
shown  not  to  be  susceptible  of  a  perfect  pecuniary  compensa- 
tion. The  Court  of  Appeals  have  said  otherwise — they  have 
said,  the  injury  must  be  shown  to  be  irreparable,  and  destruc- 
tive to  the  plaintiff's  estate,  and  incapable  of  a  perfect  pecuni- 
ary compensation,  in  the  ordinary  course  of  law. 

The  answer  in  this  case,  denies  the  charge  in  the  bill,  that 
the  cutting  down  the  timber  required  for  the  construction  of  the 
road  will  do  the  plaintiff  irreparable  injury,  or  leave  the  lands 
without  an  adequate  supply  of  wood  and  timber  for  its  pur- 
poses as  an  appendage  to  the  furnace,  and  I  see  nothing  in  the 
evidence  to  overthrow  or  destroy  the  effect  of  the  answer. 

It  must,  therefore,  upon  this  motion,  be  assumed,  that  if  the 
injunction  is  dissolved,  the  injuries  complained  of  in  the  bill 
are  not  irreparable,  but  are  susceptible  of  a  perfect  pecuniary 
compensation  ;  and  if  so,  then  it  clearly  follows,  that  the  in- 
junction must  be  dissolved,  unless  it  can  be  supported  upon 
the  ground  of  privity  of  title,  so  as  to  exempt  the  defendant 
from  an  action  of  trespass  for  the  damage,  the  principle  being, 
that  if  adequate  redress  can  be  had  at  law,  the  hand  of  this 
court  will  not  be  extended  to  prevent  the  trespass. 

It  becomes,  therefore,  material  to  inquire,  whether,  with  res- 
pect to  the  lands  upon  which  this  wood  and  timber  are  grow- 
ing, the  defendant  can  be  regarded  as  a  tenant  to  the  complain- 
ant. For,  if  he  be  not  a  tenant,  then  conceding  that  irrepara- 
ble injury  need  not  be  shown  when  there  is  privity  to  the  title, 
to  induce  this  court  to  interpose  by  injunction,  but  that  it  will 
interfere  in  this  form  in  every  case  of  waste  at  common  law, 
still  the  writ  of  injunction  would  not  be  the  appropriate  remedy 
in  this  case. 

Now,  I  do  not  understand  that  the  plaintiff  leased  to  the  de- 
fendant any  thing  more  than  the  furnace  and  its  appendages, 
and  some  adjacent  ground  sufficient  to  facilitate  the  operations 
of  the  furnace.  The  other  rights  of  the  defendant,  under  the 
contract,  are  mere  easements,  or  privileges,  to  be  enjoyed, 


380  HIGH  COURT  OF  CHANCERY. 

many  of  them,  under  the  direction  of  the  complainant.  The 
twelfth  cause  of  the  agreement  declares,  that  it  was  the  object 
of  the  company  in  entering  into  the  agreement,  among  other 
things,  to  promote  leases  to  other  parties,  and  the  entire  frame 
of  the  instrument  shows  that  such  purpose  was  kept  steadily  in 
view. 

The  defendant  was  to  have  the  privilege  to  cut  timber  on  the 
lands  of  the  company,  (not  within  the  limits  of  the  demised 
premises,)  necessary  in  the  construction  and  maintenance  of  the 
•  works,  mines  and  buildings ;  but  this  was  a  mere  privilege, 
and  did  not  constitute  the  defendant,  in  any  sense,  the  tenant 
of  the  lands  from  which  the  timber  was  to  be  cut. 

In  the  case  of  Moats  vs.  Witmer,  3  Gill  fy  Johns.,  118,  it 
was  decided,  that  a  party  who  had  a  right  to  enter  upon  pre- 
mises, for  a  particular  purpose,  became  a  trespasser,  and  an  ac- 
tion of  trespass  could  be  maintained  against  him,  if  he  entered 
for  a  different  purpose.  That  it  was  the  intention  of  the  de- 
fendant which  gave  character  to  the  act  of  entry.  If  made  for 
a  purpose  provided  for  in  the  agreement,  it  was  of  course  inno- 
cent, if  not,  he  subjected  himself  to  be  sued  in  trespass,  and  to 
the  payment  of  damages  commensurate  with  the  injury.  So 
here — the  defendant,  under  the  agreement,  might  cut  down 
wood  and  timber  for  a  particular  purpose  ;  but,  if  he  undertook 
to  do  so  for  another  purpose,  he  is  a  trespasser,  and  must  an- 
swer in  damages  for  the  wrongful  act.  It  is  the  purpose  for 
which  the  timber  is  cut,  which  gives  complexion  to  the  act.  If 
the  purpose  be  authorized,  the  act  is  rightful ;  if  not,  he  is  a 
trespasser,  and  a  jury  would  not  fail  to  make  him  pay  in  dam- 
ages, in  proportion  to  the  injury.  A  court  of  equity,  it  seems 
to  me,  would  be  passing  beyond  the  boundaries  which  have 
been  assigned  to  it,  if  it  were,  in  such  a  case,  to  interpose  its 
extraordinary  power  of  arresting  acts  by  injunction,  and,  if  ne- 
cessary, enforcing  its  prohibition,  by  attachment,  fine  and  im- 
prisonment. 

Thinking,  therefore,  that  the  plaintiff  has  not  made  out  a  case 
of  irremediable  injury,  so  far  as  the  cutting  wood  andt  imber  is 
concerned,  for  making  the  road,  and  that  the  courts  of  law,  if 


GEORGES  CREEK  COMPANY  VS.  DETMOLD.      381 

such  cutting  is  not  authorized,  are  quite  competent  to  give  re- 
dress, that  part  of  the  injunction  must  be  dissolved. 

With  regard  to  the  injunction  to  prevent  the  cutting  wood 
and  timber,  for  the  purpose  of  erecting  a  saw  mill  on  the  lands, 
it  appears,  by  the  answer  and  evidence,  that  the  mill  was  com- 
plete before  the  service  of  the  injunction,  at  least  so  far  finished 
as  not  to  require  any  further  use  of  timber,  nothing  being  neces- 
sary but  putting  the  saw  in  the  frame,  and  placing  the  band  on 
the  wheel.  The  injunction,  therefore,  in  this  particular,  comes 
too  late. 

That  part  of  the  bill  which  alleges  the  danger  from  fire  to 
the  furnace,  and  other  improvements  caused  by  the  working  of 
the  mill,  is  explicitly"  contradicted  by  the  answer,  and  the  evi- 
dence tends  rather  to  sustain  than  to  weaken  the  force  of  the 
contradiction.  The  complainant's  counsel,  apparently  conced- 
ing that  the  testimony  of  the  witnesses  is  against  him  upon 
this  point,  insists  that  in  the  nature  of  things,  the  collection  of 
a  quantity  of  combustible  materials,  in  the  vicinity  of  the  fur- 
nace, must  increase  the  danger  from  fire.  Such  would  ordinar- 
ily seem  to  be  the  case,  but  I  cannot  bring  myself  to  think,  that 
it  would  be  safe  in  the  court,  (unless  in  a  case  infinitely  strong- 
er than  this,)  to  permit  its  own  speculations  about  causes  and 
their  effects,  to  countervail  the  testimony  of  witnesses,  who, 
from  experience  and  observation,  must  be  peculiarly  competent 
to  speak  upon  the  subject. 

Being  of  opinion,  therefore,  that  the  only  grounds  upon  which 
this  injunction  can  be  supported  have  been  removed  by  the  an- 
swer and  evidence,  it  must  be  dissolved,  and  an  order  will  be 
passed  accordingly. 

It  was  objected  by  one  of  the  counsel  for  the  defendant,  that 
this  injunction  could  not  be  maintained,  because  the  bill  was 
not  under  the  corporate  seal,  nor  verified  by  the  proper  officer 
of  the  company.  Assuming  this  objection  to  be  now  in  season, 
I  do  not  think  it  a  good  one.  The  answer  of  a  corporation  is 
put  in  without  oath  under  its  corporate  seal,  but  I  do  not  find 
it  any  where  said,  that  a  bill  filed  by  a  corporation  must  be 
under  its  seal.  That  it  is  the  bill  of  the  corporation  is  suffici- 


382  HIGH  COURT  OF  CHANCERY. 

ently  vouched  by  the  signature  of  the  solicitor,  whose  author- 
ity to  file  it  need  not  be  exhibited.  2  Har.  4r  Gill,  374.  The 
corporation  could  not  swear  to  the  bill,  and  I  can  see  no  good 
objection  to  the  affidavit  of  the  treasurer  of  the  company.  I 
think  the  truth  of  the  facts  set  forth  in  the  bill  sufficiently  veri- 
fied by  his  affidavit,  and  that  is  all  that  is  required.  1  Bland, 
180. 

[An  appeal  was  taken  from  this  order,  but  it  was  subsequent- 
ly dismissed  by  the  appellant.]  *> 


RICHARD  R.  PUE, 
PROCHIEN  AMI  OF  MATILDA  R.  H.  PUE 

AND  HENRY  H.  PUE,  MINORS  $      MARCH  TERM,  1849. 

vs. 
HENRY  H.  PUE   ET  AL. 

[CONSTRUCTION  OF  WILLS.] 

IT  is  the  duty  of  the  courts  to  give  effect  to  every  part  of  a  will,  without  change 
or  rejection,  provided,  an  effect  can  be  given  to  it,  not  inconsistent  with  the 
general  intent  of  the  whole  will  taken  together. 

When  there  are  two  conflicting  clauses,  the  principle  is,  that  you  are  not  to 
disturb  the  prior  devise  further  than  is  absolutely  necessary  for  the  purpose 
of  giving  effect  to  posterior  qualifying  disposition. 

When  a  testator  uses,  in  one  part  of  his  will,  words  having  a  clear  meaning  in 
law,  and  in  another  part,  words  inconsistent  with  the  former,  the  first  words 
are  to  be  cancelled  and  overthrown,  only,  when  the  two  provisions  are  totally 
inconsistent  with  each  other,  and  where  the  real  intention  of  the  testator  can- 
not be  ascertained. 

It  is  now  fully  established,  that  the  general  intent  of  the  testr.tor,  though  first 
expressed,  will  overrule  the  particular  intent. 

[This  case  originated  on  the  petition  of  Richard  R.  Pue,  the 
next  friend  of  Matilda  R.  H.  Pue,  and  Henry  H.  Pue,  infants ; 
stating  that  Philip  Hammond,  deceased,  by  his  last  will  and 
testament,  devised  to  his  daughter  Harriet,  a  tract  of  land  in 
Anne  Arundel  county  in  fee  simple,  upon  which  she  entered 


PUE  vs.  PUE.  383 

after  his  death  ;  that  she  subsequently  intermarried  with  Henry 
H.  Pue,  by  whom  she  had  two  children,  the  said  Matilda  and 
Henry,  and  died  in  the  year  1814 — leaving  her  husband  and 
said  children  surviving  her;  that  her  husband  is  now  in  pos- 
session of  the  land  as  tenant  by  the  courtesy ;  that  it  would  be 
beneficial  to  all  parties,  but  particularly  the  infants,  that  the 
estate  be  sold,  and  the  proceeds  of  sale  properly  distributed 
amongst  them  ;  and  praying  for  such  sale.  Before  a  sale  (to 
which  Henry  H.  Pue  by  his  answer  agreed)  was  made,  a  peti- 
tion was  filed  in  the  cause  by  Rezin  Hammond  and  others,  ob- 
jecting to  the  proceedings,  on  the  ground  that  they  had  not 
been  made  parties  thereto,  although  interested  as  trustees  for 
the  said  infants ;  and  denying  that  the  said  lands  were  devised 
to  the  said  Harriet  Hammond  in  fee  simple,  or  that  her  hus- 
band had  any  interest  therein.  The  petitioners  also  prayed  to 
be  made  parties,  which  was  accordingly  done.  A  commission 
was  afterwards  issued,  and  certain  testimony  taken,  relative  to 
the  propriety  of  a  sale,  the  effect  of  which  is  stated  by  the  Chan- 
cellor in  his  opinion  ;  and  evidence  was  also  given  of  a  lease, 
to  which  the  land  was  subject,  but  which  the  lessees  had  agreed 
to  surrender  on  certain  conditions,  for  the  purpose  of  facilitat- 
ing a  sale.  The  two  clauses  of  Philip  Hammond's  will,  under 
which  the  parties  respectively  claim,  are  set  forth  in  the  Chan- 
cellor's opinion.] 

THE  CHANCELLOR  : 

Upon  a  more  careful  examination  of  the  will  of  Philip  Ham- 
mond, deceased,  my  mind  has  been  brought  to  the  conclusion, 
that  his  daughter  Harriett,  who  afterwards  intermarried  with 
Henry  H.  Pue,  the  elder,  took  an  estate  in  fee,  in  the  lands  men- 
tioned in  the  proceedings  in  this  cause  ;  and  that,  consequently, 
her  children  upon  her  death,  took  by  descent  from  her,  and  not 
as  purchasers  under  the  will  of  their  grandfather,  the  testator. 

The  language  of  the  devise  to  Harriett  is  confessedly  full  and 
ample  to  pass  the  fee.  It  is  to  her,  "her  heirs  and  assigns  for- 
ever," and  she  must,  therefore,  take  the  entire  estate,  unless  in 
some  other  part  of  the  will  there  are  provisions,  which,  either 


384  HIGH  COURT  OF  CHANCERY. 

expressly,  or  by  plain  implication,  reduce  the  estate  thus  clear- 
ly devised,  to  a  lesser  interest. 

The  will  is  a  very  long  one.  It  disposes  of  a  large  estate 
among  the  children  and  other  objects  of  the  testator's  bounty. 
To  his  sons,  of  whom  he  had  several,  he  devises  portions  of  his 
real  estate  for  life,  in  express  terms,  with  remainder  in  fee  to 
their  children ;  but  to  his  daughters,  Matilda  Hammond  and 
Harriet  Hammond,  he  gives  the  absolute  and  entire  interest,  in 
the  most  unequivocal  language — the  devises  to  them  being, 
them,  "their  heirs  and  assigns  forever." 

There  could,  therefore,  of  course  be  no  doubt  upon  the  ques- 
tion, but  for  a  clause  in  the  latter  part  of  the  will,  which  is  sup- 
posed to  be  repugnant  to,  or  inconsistent  with,  the  devises  in 
fee  to  the  daughters,  and  to  place  them  upon  an  equality  with 
the  sons,  who  took  estates  for  life  only.  These  clauses  being 
regarded  as  repugnant,  the  rule  in  the  construction  of  wills  is 
supposed  to  be  applicable,  which  makes  the  posterior  clause  in 
local  position,  prevail,  when  the  clauses  are  utterly  irreconcila- 
ble, so  that  they  cannot  stand  together ;  the  subsequent  words 
being  considered  to  denote  a  subsequent  intention. 

The  clause  relied  upon,  and  which,  in  conformity  with  the 
above  rule,  is  supposed  to  reduce  the  fee  simple  estate  given  to 
Mrs.  Pue,  to  a  life  estate,  is  as  follows : 

"I  will  and  desire,  that  in  case  any  of  my  said  sons  or  daugh- 
ters should  die,  leaving  a  child  or  children  under  the  age  of 
twenty-one  years,  that  my  surviving  sons  take  the  property  of 
such  child  or  children  into  their  care  and  possession,  and  man- 
age the  same  for  the  benefit  of  such  child  or  children.  And, 
I  do  hereby  give  and  devise,  to  my  said  sons  who  shall  be  so 
surviving,  the  property  herein  before  devised  to  such  child  or 
children,  until  they  shall  respectively  arrive  at  the  age  of  twenty- 
one  years,  or  marry ;  in  trust,  however,  to  receive  the  rents," 
&c.,  thereof,  for  the  sole  use,  benefit  and  interest  of  such  child 
or  children. 

It  is  supposed,  and  it  has  been  argued,  that  by  force  of  this 
clause,  which  is  posterior  in  local  position  to  the  clause  which 
contains  the  devise  in  fee  to  Mrs.  Pue,  one  of  the  daughters  of 


PUE  vs.  PUE  385 

the  testator,  that  the  devise  to  her  was  converted  into  a  life 
estate,  merely,  with  remainder  to  her  children ;  and  that  the 
surviving  sons  of  the  testator  are  entitled  to  hold  the  property 
in  trust  for  such  children,  until  they  respectively  attain  the  age 
of  twenty-one  years  or  marry. 

It  is  quite  possible,  that  if  there  were  no  provisions  in  the 
will  upon  which  this  latter  clause  could  take  effect,  except  on 
those  to  be  found  in  the  devises  to  the  daughters,  the  construc- 
tion contended  for  would  prevail,  as  it  is  the  duty  of  the  court 
to  give  effect  to  every  part  of  the  will,  without  change,  or  re- 
jection ;  provided,  an  effect  can  be  given  to  it,  not  inconsist- 
ent with  the  general  intent  of  the  whole  will,  taken  together. 

But  when,  upon  an  examination  of  this  will  it  is  found,  that 
that  there  are  provisions  upon  which  this  latter  clause  can  ope- 
rate, without  at  all  disturbing  the  devises  to  the  daughters,  it  is 
believed  that  there  is  no  rule  of  law  which  requires  its  applica- 
tion to  those  devises.  The  principle  appears  to  be,  that  you 
are  not  to  disturb  the  prior  devise  further  than  is  absolutely 
necessary  for  the  purpose  of  giving  effect  to  the  posterior  quali- 
fy ing 'disposition.  1  Jarman  on  Wills,  414. 

It  was  said  by  Lord  Redesdale  in  Jesson  vs.  Wright,  2  Bligh, 
56,  "it  must  not  be  understood  that  because  a  testator  uses  in 
one  part  of  his  will  words  having  a  clear  meaning  in  law,  and 
in  another  part  words  inconsistent  with  the  former,  that  the  first 
words  are  to  be  cancelled  or  overthrown."  This  is  only  to  be 
done  when  the  two  provisions  are  totally  inconsistent  with  each 
other,  and  where  the  real  intention  of  the  testator  cannot  be  as- 
certained. Corecuboven  vs.  Shuler,  2  Paige,  122. 

It  is  quite  apparent  in  this  case,  that  the  testator  did  not  in- 
tend to  give  his  sons  and  daughters  the  same  interest  in  the 
real  estate  devised  to  them  respectively,  and  it  would  seein 
equally  manifest,  that  he  knew  the  proper  language  to  be  em- 
ployed in  creating  a  life  estate  and  an  estate  in  fee.  In  the 
devises  to  each  one  of  his  numerous  sons,  he  says  in  terms — I 
give  him  the  land  described,  for  and  during-  his  natural  life  ; 
and  to  the  child  or  children  of  such  son  born  in  lawful  wedlock, 
and  their  heirs  forever.  The  same  precise  language  is  repeated 
VOL.  i. — 33 


386  HIGH  COURT  OF  CHANCERY. 

in  the  devise  to  each  son,  whilst  in  the  clauses  devising  to  the 
daughters  the  terms  used  are,  to  her  heirs  and  assigns  forever. 

In  view  of  the  marked  difference  in  these  devises;  the  repe- 
tition of  the  same  identical  language  in  the  devises  to  each  son, 
and  each  daughter,  it  would  require  a  very  strong  implication 
to  induce  the  court  to  believe,  that  notwithstanding  the  appa- 
rent care  of  the  testator  to  give  different  estates  to  his  sons  and 
daughters,  as  thus  manifested,  still  he  intended  to  place  them 
upon  a  footing  of  entire  equality.  If  such  was  his  intention, 
why  did  he  give  himself  the  trouble  to  repeat  with  scrupulous 
care,  the  same  language  in  the  several  devises  to  his  sons,  and 
employ  totally  different  terms,  with  a  meaning  essentially  vari- 
ant, when  he  came  to  provide  for  his  daughters  ? 

We  might  speculate  upon  the  motives  which  actuated  the 
testator  to  make  this  difference,  and  by  possibility  hit  upon  the 
true  one  ;  but  it  is  quite  as  likely  we  should  fall  into  error,  and 
as  we  have  no  concern  with  his  motives,  and  are  only  bound  to 
carry  his  intentions  into  effect,  as  well  as  we  can  ascertain  them, 
we  will  not  indulge  in  conjectures  upon  the  subject.  That  he 
did  not  mean  to  place  his  sons  and  daughters  upon  an  equality 
with  regard  to  the  real  estate  devised  to  them,  seems  to  me  very 
obvious. 

The  sons,  as  we  have  seen,  took  estates  for  life  with  remain- 
ders in  fee  to  their  children  ;  and  upon  these  devises  the  clause 
creating  the  trust  will  operate,  without  disturbing  the  devises  to 
the  daughters.  The  cause  in  question  was  intended  to  operate 
upon  property,  which  the  testator  had  devised,  or  thought  he 
had  devised  to  his  grandchildren  ;  but  he  had  devised  nothing 
to  the  grandchildren  who  might  be  born  of  his  daughters, 
and,  therefore,  as  to  them,  the  provision  in  the  latter  part  of  the 
will,  must  be  ineffectual,  though  it  will  operate  upon  the  prop- 
erty devised  to  the  grandchildren  born  of  the  sons.  The  tes- 
tator may  have  thought,  that  although  he  had  given  his  daugh- 
ters estates  in  fee,  still  their  children,  if  they  left  any,  would  take 
under  his  will,  and  not  by  descent  from  the  mother,  and  that, 
therefore,  he  could  place  it  in  the  hands  of  trustees  for  their 
use.  But  it  is  clear  that  he  had  devised  nothing  to  the  children 


PUE  vs.  PUE.  387 

of  his  daughters,  his  power  over  the  lands  given  to  his  daugh- 
ters having  been  exhausted  by  the  devise  in  fee  to  them  ;  and 
the  language  in  the  clause  creating  the  trust,  so  far  as  these 
grandchildren  are  concerned,  proceeded  upon  a  mistaken  view 
of  his  power ;  for  I  do  not  think  it  can  be  inferred  from  this 
inaccurate  reference  to  the  devise  to  the  daughters,  that  he  in- 
tended to  change  the  nature  of  the  estates  he  had  previously 
given  them,  in  clear  and  technical  terms.  1  Jarman,  425. 

Another  consequence  would  follow  the  constructions  con- 
tended for  by  the  counsel  for  the  surviving  sons  of  the  testator, 
which,  it  appears  to  me,  would  be  repugnant  to  his  obvious  in- 
tention ;  and  that  would  be,  that  the  fee  in  the  lands  devised 
to  the  daughters,  would  be  undisposed  of  by  the  will,  and 
would  descend  upon  his  heirs  at  law.  The  will  was  made  be- 
fore the  act  of  1825,  ch.  119,  and,  therefore,  the  child  or  chil- 
dren of  the  daughters,  if  they  take  as  purchasers  under  the  will, 
could  take  no  more  than  estates  for  life,  which  would  be  plac- 
ing them  in  a  worse  situation  than  the  children  of  the  testator's 
sons,  to  whom  the  remainders  of  the  property  devised  to  their 
fathers  are  expressly  limited  in  fee  simple.  This  construction, 
therefore,  would  defeat  the  general  intent  of  the  testator,  which, 
though  first  expressed,  shall  overrule  the  particular  intent,  as 
is  now  fully  established.  1  Jarman,  411,  in  the  notes. 

My  impression,  therefore,  is,  that  Harriet,  the  daughter  of  the 
testator,  took  an  estate  in  fee,  in  the  land  which  the  petition  in 
this  case  seeks  to  have  sold ;  and  the  remaining  question  is, 
whether  it  sufficiently  appears,  that  it  will  be  for  the  interest 
and  advantage  of  the  parties  interested,  that  it  should  be  sold. 

This  of  course  depends  upon  the  proof;  and,  upon  a  careful 
examination  of  it,  I  am  of  opinion,  that  it  does  so  appear,  and, 
therefore,  a  decree  will  be  signed  for  a  sale.  This  decree  will 
provide  for  a  surrender  of  the  lease  as  proposed  ;  and  as  the 
petitioners,  Rezin  Hammond  and  others,  intervened  in  this 
cause,  with  the  leave  of  the  court,  the  costs  of  the  entire  pro- 
ceedings will  be  paid  out  of  the  proceeds  of  the  sales. 

[No  appeal  was  taken  from  this  decree.] 


388  HIGH  COURT  OF  CHANCERY. 


JOHN  MOUSLEY  ET  AL. 

vs.  £»     MARCH  TERM,  1849. 

EDWARD  WILSON  ET  AL. 

[ACT  OF  1793,  CH.  43.] 

THE  act  of  1793,  ch.  43,  forbids  the  restoring  the  landlord  to  the  possession  of 
the  premises,  when  he  is  proceeding  under  that  act,  only  when  the  title  is 
disputed  or  claimed  by  some  person,  in  virtue  of  a  right  or  title,  accrued  or 
happening  since  the  commencement  of  the  lease. 

[This  bill  was  filed  by  the  complainants,  Rachel  Mousley, 
widow  of  Richard  Simpers,  his  infant  children,  and  heirs  at 
law,  and  John  Mousley,  the  present  husband  of  Rachel,  to  ob- 
tain an  injunction,  and- the  specific  performance  of  a  contract 
alleged  to  have  been  made  (in  writing  it  was  believed)  between 
Edward  Wilson,  the  defendant,  and  the  said  Richard  Simpers, 
deceased. 

The  bill  stated,  that  on  the  3d  of  December,  1842,  Richard 
L.  Simpers  contracted  with  Edward  Wilson,  for  the  purchase 
of  fifty  acres  of  land  in  Cecil  county,  for  $1500,  to  take  effect 
on  the  26th  of  March,  1843  ;  that  in  part  payment  of  the  pur- 
chase money,  he  assigned  to  Wilson  three  single  bills  in  his 
favor,  which  were  collected  by  the  latter ;  that  Wilson  being 
indebted  to  him  on  several  notes,  and  on  open  account,  he  re- 
leased him  from  their  payment ;  and,  that  he  entered  upon  the 
land  in  pursuance  of  the  agreement,  on  the  25th  of  March, 
1843,  and  continued  to  reside  thereon  till  his  death  in  1846 ; 
that  his  widow,  together  with  his  children,  continued  to  reside 
thereon  ;  and  in  the  year  1847,  (being  ignorant  of  her  rights,) 
she  agreed  to  rent  the  land  from  Wilson  for  one  year,  at  $30 
rent ;  that  notice  was  given  her  to  quit  at  the  expiration  of  that 
time,  and  on  her  refusing  to  do  so,  steps  were  being  taken,  un- 
der the  act  of  1793,  ch,  43,  to  put  her  and  the  other  complain- 
ants out  of  possession  ;  and,  that  Wilson,  although  offered  the 
balance  of  the  purchase  money,  (of  which  a  small  portion  was 
still  due,)  on  the  execution  of  a  deed  for  the  land,  had  refused 
to  accede  to  the  proposition.  An  injunction  was,  accordingly, 


MOUSLEY  VS.   WILSON.  389 

granted.  The  defendant  denied  the  making  of  the  agreement 
charged  in  the  bill ;  but  admitted  the  assignment  of  the  single 
bill,  and  the  release  of  the  sums  which  he  owed  to  Simpers. 
He  denied,  however,  that  the  assignment  and  release  were 
for  the  purpose  alleged  in  the  bill.  Leave  was  afterwards  ob- 
j:ained  by  the  complainants  to  take  testimony,  which  having 
been  filed,  the  case  was  argued  before  the  Chancellor,  on  the 
motion  to  dissolve  the  injunction,  who  delivered  his  opinion  at 
this  term. 

As  to  the  effect  of  the  testimony,  the  Chancellor  said  :] 

THE  CHANCELLOR: 

It  is  very  clear,  I  think,  from  the  evidence  in  this  case,  taken 
in  conformity  with  the  act  of  assembly,  that  at  the  time  stated 
in  the  bill,  an  agreement  was  made  between  the  late  Richard 
L.  Simpers  and  the  defendant,  Wilson,  for  the  sale  by  the  lat- 
ter to  the  former,  of  fifty  acres  of  land  ;  that  a  part  of  the  money 
was  paid  by  Simpers  in  his  lifetime,  and,  that  he  was  in  pos- 
session of  the  land,  as  purchaser,  to  the  period  of  his  death,  in 
the  year  1846.  Whether  the  contract  was  in  writing,  as  the 
bill  alleges,  the  complainants  were  informed,  is  not  quite  clear  ; 
but,  as  part  performance  is  alleged  and  proved,  it  may  not  be 
very  material  ;  as  part  performance  would  take  the  case  out  of 
the  statute  of  frauds.  Moale  et  al.  vs.  Buchanan  et  a/.,  Gill  fy 
Johns.,  314. 

It  is  said,  however,  that  as  the  bill  in  this  case  alleges  that 
the  contract  was  in  writing,  it  is  not  competent  for  the  com- 
plainants to  prove  a  parol  agreement,  and  ask  for  its  specific 
execution  on  the  ground  of  part  performance.  The  allegation, 
however,  is  very  far  from  being  explicit  and  positive.  It  is, 
that  "the  agreement  was  in  writing  as  the  complainants  have 
been  informed."  But  this,  it  is  thought,  is  not  the  stage  at 
which  it  would  be  proper  to  decide  on  the  admissibility  of  the 
proof,  upon  the  ground  that  the  allegations  of  the  bill  are  not  so 
framed  as  to  let  it  in  ;  and  the  court  would  certainly  not  be  dis- 
posed to  adopt  a  very  strict  rule  in  a  case  like  the  present, 

33* 


390  HIGH  COURT  OF  CHANCERY. 

when  the  right  of  minors  are  involved,  suing  by  their  next 
friend. 

Being  satisfied  that  a  contract  for  the  sale  of  the  land  was 
made  between  the  parties,  either  in  writing  or  by  parol,  and 
that  a  part  of  the  purchase  money  was  paid,  and  possession  of 
the  premises  held  by  the  vendee  under  the  the  purchase,  and 
that,  therefore,  the  merits  of  the  case  are  with  the  complainants, 
it  is  the  duty  of  the  court  to  interpose  for  their  protection,  un- 
less some  clear  legal  principle  forbids  it. 

The  case,  as  has  been  already  remarked,  is  free  from  the  ob- 
jection founded  upon  the  statute  of  frauds,  and,  I  do  not  think, 
the  technical  objection,  having  reference  to  the  frame  of  the 
bill,  can  so  far  prevail,  at  least  at  this  stage  of  the  cause,  as  to 
induce  the  court  to  dissolve  the  injunction. 

It  is  very  clear,  I  think,  that  the  heirs  at  law  of  Simpers,  the 
vendee,  can  be  in  no  way  prejudiced  by  the  agreement  between 
his  widow  and  this  vendor,  that  she  would  become  his  tenant 
for  a  part  of  the  premises.  The  relation  of  landlord  and  tenant 
as  between  them,  can,  therefore,  have  no  effect  upon  the  title 
of  the  heirs  to  the  aid  of  this  court. 

But  it  is  said  that  the  interposition  of  this  court  by  injunction 
is  rendered  unnecessary,  and,  therefore,  improper,  by  the  pro- 
visions of  the  act  of  1793,  chap.  43,  under  which  the  proceed- 
ing was  instituted.  That  the  complainants  may  obtain  ample 
redress,  if  they  are  entitled  to  retain  possession  of  the  premises, 
by  pursuing  the  course  pointed  out  by  the  legislature,  without 
invoking  the  extraordinary  powers  of  a  court  of  equity. 

Upon  reference  to  the  act  of  assembly,  however,  I  am  per- 
suaded it  will  be  found  that  these  complainants,  the  heirs  at  law 
of  Simpers,  are  not  in  a  condition  to  avail  themselves  of  its  pro- 
visions. The  proviso  to  the  act  is,  "that  if  the  said  tenant  in 
possession  shall  allege,  that  the  title  to  the  said  lands,"  &c., 
"is  disputed  or  claimed  by  some  other  person  or  persons  whom 
he  shall  name,  in  virtue  of  a  right  or  title  accrued  or  happening 
since  the  commencement  of  said  lease,  by  descent,  deed,"&c., 
"and  if,  thereupon,  the  person  so  claiming  shall  appear,  or  upon 
a  summons,"  &c.,  "shall  appear  before  the  said  justices,  and 


MOUSLEY  VS.  WILSON.  391 

shall  make  oath,"  &c.;  "and  shall,  with  two  sufficient  sureties, 
enter  into  bond  to  the  lessor  or  lessors,  in  such  sum  as  the  said 
justices  shall  think  proper,  not  less  than  three  hundred  dollars, 
to  prosecute  his,  her  or  their  claim  to  the  next  county  court," 
&c.;  "that  then,  and  not  otherwise,  the  said  justices  shall  for- 
bear to  award  restitution  as  aforesaid,  of  the  possession  as  afore- 
said." 

It  will  be  seen  from  this  proviso,  that  the  justices  are  only 
authorized  to  forbear  restoring  the  landlord  to  the  possession  of 
the  premises  when  he  is  proceeding  under  this  act  of  assembly, 
when  the  title  is  disputed,  or  claimed  by  some  person,  in  virtue 
of  a  right  or  title  accrued  or  happening  since  the  commencement 
of  the  lease.  Unless  this  is  the  case,  that  is,  unless  the  tenant 
can  show,  or  there  appear  grounds  for  believing,  that  the  title 
has  vested  in  some  other  person,  after  commencement  of  the 
lease,  the  general  rule,  that  a  tenant  shall  not  be  permitted  to 
dispute  the  title  of  his  landlord,  shall  prevail,  and  he  will  be 
made  to  surrender  up  the  possession. 

But  in  this  case,  the  title  of  these  infant  complainants,  the 
heirs  at  law  of  Richard  L.  Simpers,  whatever  that  title  may  be, 
did  not  accrue,  or  happen  after  the  commencement  of  this  lease, 
from  Wilson  to  Simpers.  Their  title  accrued  upon  the  death  of 
their  father  in  1846,  and  the  lease  commenced  in  the  spring  of 
1847,  so  that  the  justices  could  not  forbear  to  award  restitution 
of  the  possession  to  the  landlord,  if  his  case  entitles  him  to  the 
benefit  of  the  provisions  of  the  act  of  assembly,  as  appears  to 
be  conceded.  The  complainants,  therefore,  even  if  the  tenant 
should  think  proper  to  call  them  before  the  justices,  could  not 
by  any  proceeding  at  law,  prevent  the  possession  from  being 
restored.  There  would,  moreover,  be  another  formidable  dif- 
ficulty in  the  way  of  these  infant  complainants.  The  act  of 
assembly  requires  them  to  give  bond,  with  sufficient  sure- 
ties, to  prosecute  their  claim  at  the  next  county  court  which 
shall  be  held  in  and  for  said  county,  thereafter.  But  these  par- 
ties, being  minors,  could  not  give  such  bond,  and  for  that  rea- 
son likewise,  could  not  avail  themselves  of  the  benefit  of  the 
act. 


392  HIGH  COURT  OP  CHANCERY. 

Thinking,  then,  that  this  court  has  jurisdiction  in  a  case  like 
the  present,  to  enforce  the  specific  execution  of  this  contract, 
set  up  in  the  bill ;  and  that  the  equity  stated  for  an  injunction 
has  not  been  removed,  when  the  depositions  are  considered  in 
connection  with  the  pleadings,  the  injunction  will  be  continu- 
ed until  the  hearing,  or  further  order. 

[No  appeal  was  taken  from  this  order.] 


ELYSVILLE  MANUFACTUR- 
ING COMPANY 

^      MARCH  TERM,  1849. 

vs. 

THE  OKISKO    COMPANY. 

[PAROL     EVIDENCE    TO    CONTRADICT    A    RECEIPT    IN    A   DHED ACTS    OF    A    CORPOR- 
ATION  HOW    EVIDENCED SUBSCRIPTION    TO    STOCK.] 

IT  is  the  undisputed  law  of  this  state,  that  the  receipt  in  a  deed,  acknowledging 
the  payment  of  the  consideration  money,  is  only  prima  facie  proof,  and  may 
be  contradicted  or  explained  by  parol  evidence.  * 

When  a  deed  is  rendered  inoperative  and  void  by  disproving  the  consideration, 
expressed  in  it,  evidence  of  a  different  consideration  will  not  be  received  to 
set  it  up. 

But,  where  a  party  maintains  the  validity  of  a  deed,  and  seeks,  upon  the  alle- 
gation, that  the  consideration  money  has  not  been  paid,  to  enforce  its  payment, 
by  the  assertion  of  the  vendor's  lien,  evidence  maybe  admitted  to  prove  that  he 
has  been  satisfied  for  the  purchase  money,  by  receiving  something  else  as  an 
equivalent  therefor. 

The  rules  of  evidence  in  regard  to  explaining,  or  varying,  or  contradicting 
written  evidence,  are  the  same  in  courts  of  equity  as  in  courts  of  law. 

It  is  well  settled,  in  this  country,  that  the  acts  of  a  corporation,  evidenced  by 
a  vote,  written  or  unwritten,  are  as  completely  binding  upon  it,  and  as  full  au- 
thority to  its  agents,  as  the  most  solemn  acts  done  under  the  corporate  seal ; 
and,  that  promises  and  engagements  may  as  well  be  implied  from  its  acts,  and 
the  acts  of  its  agents,  as  if  it  were  an  individual. 

A  vote  or  resolution  appointing  an  agent,  need  not  be  entered  on  the  minutes, 
but  may  be  inferred  from  the  permission  or  acceptance  of  his  services. 

The  president  of  one  corporation  subscribed  for  stock  in  another  corporation. 
The  certificate  for  the  stock  was  received  by  the  agent  of  the  former,  and  re- 
tained by  it ;  and  the  stock,  on  two  occasions,  was  voted  by  an  officer  or 
member  of  the  former  corporation.  It  was  HELD — that  from  these  facts,  the 
authority  to  the  president  to  make  the  subscription  might  be  presumed. 


ELYSVILLE  MANUFACTURING  CO.  VS.  OKISKO  CO.      393 

[The  bill  in  this  case,  alleged,  that  on  the  20th  August, 
1846,  the  complainants  executed  to  the  defendants,  a  deed  of 
certain  property,  lying  partly  in  Howard  district,  and  partly  in 
Baltimore  county,  for  the  sum  of  $25,000  ;  that  the  defend- 
ants had  taken  possession  thereof,  and  peaceably  occupied  the 
same  ever  since ;  that,  although  a  formal  acknowledgment  of 
the  receipt  of  the  purchase  money  was  written  on  the  deed,  it 
had  never  in  fact  been  paid  ;  and  that,  the  defendants  were 
threatening  to  sell  the  same,  without  regard  to  the  rights  of 
the  complainants.  The  bill  prayed  for  an  injunction,  to  restrain 
the  defendants  from  selling  ;  and  also,  that  the  property  might 
be  sold  under  the  direction  of  the  court,  to  satisfy  the  com- 
plainant's claim. 

The  answer  denied  that  the  said  purchase  money  was  still 
due,  and  in  explanation  stated,  that  in  the  month  of  July,  1845, 
the  Elysville  Manufacturing  Company,  consisting  of  the  five 
Messrs.  Ely,  the  owners  of  the  property  in  dispute,  being  in 
want  of  means  to  conduct  their  operations,  agreed  with  certain 
merchants  in  Baltimore,  that  if  the  latter  would  join  with  them 
and  contribute  the  sum  of  $25,000,  the  company  would  con- 
vey to  the  association  thus  formed,  the  said  property,  and  in 
consideration  thereof,  hold  a  like  sum  of  $25,000  in  the  capital 
stock  of  the  association  thus  formed  ;  that  the  sum  proposed 
was  raised,  in  pursuance  of  the  agreement ;  that  this  associa- 
tion was  afterwards  incorporated  by  the  name  of  the  Okisko 
Company  ;  that  the  Elysville  Manufacturing  Company,  by 
Thomas  Ely,  its  president,  subscribed  for  two  hundred  and 
fifty  shares  of  the  capital  stock,  amounting  to  the  sum  of 
$25,000,  as  shown  by  an  agreement  filed  with  the  answer : 
that  the  subscribers,  other  than  the  complainants,  paid  for  their 
stock  in  cash,  and  that  a  certificate  for  two  hundred  and  fifty 
shares  was  delivered  to  the  complainants,  on  the  execution  of 
said  deed,  and  by  them  received,  as  the  true  and  only  con- 
sideration therefor. 

A  great  deal  of  testimony  was  afterwards  filed  in  the  cause, 
and  exceptions  to  its  admissibility  were  taken  and  argued  at  the 
hearing  of  the  motion  to  dissolve  the  injunction,  the  nature  of 
which  will  appear  from  the  Chancellor's  opinion. 


394  HIGH  COURT  OF  CHANCERY. 

As  to  the  statement  in  the  answer,  that  the  consideration 
money  of  the  deed  had  been  paid  in  stock,  the  Chancellor 
said  :] 

THE  CHANCELLOR: 

It  is  the  undisputed  law  in  this  state,  that  the  receipt  in  a 
deed,  acknowledging  the  payment  of  the  consideration  money 
may  be  contradicted ;  that  it  is  only  prima  Jade  proof,  and  is 
exposed  to  be  either  contradicted  or  explained  by  parol  evi- 
dence ;  and  in  this  respect  constitutes  an  exception  to  the 
general  rule,  which  protects  written  evidence  from  the  influence 
of  such  testimony.  Higden  vs.  Thomas,  1  H.  if  G.,  139 ; 
Wolfe  vs.  Hauver,  1  Gill,  85. 

But,  although  the  receipt  in  the  deed,  acknowledging  the 
receipt  by  the  vendor  of  the  consideration,  may  be  disproved 
by  parol,  and  an  action  maintained  by  him,  for  the  purchase 
money  on  the  production  of  such  proof,  still  it  is  insisted,  that 
the  opposite  party,  the  vendee,  is  held  to  the  proof  of  the  con- 
sideration expressed  ;  and  that  he  will  not  be  allowed  to  sup- 
port the  instrument,  by  setting  up  a  different  consideration, 
repugnant  to  that  expressed. 

In  the  case  of  the  Union  Bank  vs.  Betts,  1  Harr.  fy  Gill, 
175,  the  Court  of  Appeals  decided,  that  were  a  deed  was  im- 
peached for  fraud,  the  party  to  whom  the  fraud  is  imputed  will 
not  be  permitted  to  prove  any  other  consideration  in  support  of 
the  instrument. 

The  consideration  offered  to  be  proved  in  that  case,  was 
marriage,  and  the  attempt  was  to  set  up  marriage  as  the  con- 
sideration, in  lieu  of  the  money  consideration  expressed;  but 
this  was  decided  to  be  inadmissible,  the  deed  being  impeached 
for  fraud.  The  proof,  if  admitted,  would  have  changed  the 
deed  from  one  of  bargain  and  sale,  to  a  covenant,  to  stand  seized 
to  the  use  of  the  grantee.  In  the  case  of  the  Union  Bank  and 
Betts,  the  disproof  of  the  consideration  expressed,  had  render- 
ed the  deed  fraudulent  and  void  as  a  bargain  and  sale,  and  by 
admitting  the  parol  proof  offered,  this  void  instrument  would 
have  been  re-established  as  an  instrument  of  a  different  char- 
acter. 


ELYSVILLE  MANUFACTURING  CO.  VS.  OKISKO  CO.      395 

In  every  subsequent  case  decided  by  the  Court  of  Appeals, 
the  case  of  the  Bank  and  Betts,  is  explained  in  this  way;  that 
is,  as  having  decided,  that  when  a  deed  is  rendered  inopera- 
tive and  void  by  disproving  the  consideration  expressed  in  it, 
evidence  of  a  different  consideration  will  not  be  received,  to 
set  it  up.  Clagett  and  Hill  vs.  Hall,  9  G.  fy  J.,  91  ;  Cole  vs. 
Alberts  and  Runge,  1  Gill,  423. 

But  the  question  presented  in  this  case,  is  of  a  different 
description.  This  deed  is  not  impeached  for  fraud,  as  in  the 
case  of  the  Union  Bank  vs.  Betts,  and  Cole  vs.  Albers  and 
Runge.  The  complainants  in  this  case  maintain  the  validity 
of  the  deed,  and  seek,  upon  the  allegation,  that  the  considera- 
tion money  has  not  been  paid,  to  enforce  its  payment  by  the 
assertion  of  the  vendor's  lien.  And  the  question  is,  whether 
in  a  court  of  equity  he  can  be  permitted  to  assert  this  lien,  and 
compel  payment  in  this  way  of  the  consideration  expressed  in 
the  deed,  if  it  appears  by  the  evidence,  that  he  has  been  satis- 
fied for  the  purchase  money,  by  receiving  something  else  as  an 
equivalent  therefor. 

In  the  case  of  Wolfe  vs.  Hauver,  1  Gill,  84,  which  was  an 
action  of  assumpsit,  to  recover  the  value  of  lands  sold  and  con- 
veyed, but  not  paid  for,  objection  was  made  to  the  admissibility 
of  parol  evidence  to  disprove  the  acknowledgment  in  the  deed ; 
but  the  court  admitted  it,  upon  the  ground,  that  such  acknowl- 
edgment was  only  prima  facie  evidence,  and  the  plaintiff,  the 
vendor,  obtained  the  verdict  and  judgment.  In  that  case  as 
here,  the  deed  was  not  impeached  for  fraud,  nor  was  the  evi- 
dence of  non-payment  offered  to  render  it  inoperative  and  void; 
and  the  Court  of  Appeals  say,  "the  introduction  of  the  evi- 
dence proposed  to  be  offered,  neither  changes  nor  affects  any 
right  transmitted  in  the  property  conveyed  by  the  deed ;  it 
operates  no  change  in  the  legal  character  of  the  instrument, 
nor  in  any  manner  affects  injuriously  any  part  of  the  deed,  as  a 
conveyance  ;  the  receipt  of  the  purchase  money  is  no  necessary 
part  of  the  deed,  as  it  would  in  every  respect  be  as  valid  with- 
out it  as  with  it." 

The  deed  then  being  valid,  and  passing  the  legal  title,  and 


396  HIGH  COURT  OF  CHANCERY. 

the  bargainer  therein  not  impeaching  it  as  fraudulent,  but 
claiming  the  aid  of  this  court  to  enforce  his  lien  as  vendor,  to 
recover  the  purchase  money  expressed  in  it,  the  question  is, 
shall  he  be  permitted  to  do  so,  if  upon  the  evidence  it  is  shown 
that  he  has  received,  not  in  money,  but  in  something  else  of 
value,  what  at  the  time  he  considered  as  an  equivalent  for  the 
money  ? 

Suppose,  in  the  case  of  Wolfe  vs.  Hauver,  the  defendant, 
the  purchaser,  could  have  shown  that  he  had  paid,  and  the 
plaintiff  had  received,  as  an  equivalent  for  the  two  thousand 
dollars,  (the  consideration  expressed  in  the  deed,)  merchan- 
dise or  other  property  ;  and  that  such  was  the  agreement  of 
the  parties,  at  the  time  the  contract  for  the  purchase  was  made? 
Can  it  be  possible,  that  under  such  circumstances  the  com- 
plainant could  have  been  allowed  to  recover  a  judgment  for  the 
purchase  money  ?  If  he  could,  where  would  be  the  defend- 
ant's redress  for  a  wrong  so  monstrous  and  palpable?  If  he 
could  not  defend  himself  at  law,  because  he  could  not  in  the 
face  of  the  deed  prove  any  other  than  the  payment  of  the 
monied  consideration  expressed,  he  would  be  equally  defence- 
less in  equity  ;  because  the  rules  of  evidence  in  regard  to  ex- 
plaining, or  varying,  or  contradicting  written  evidence,  are  the 
same  in  both  courts  ;  and  thus  the  court  must  unavoidably  be 
the  instrument  in  inflicting  the  grossest  injustice. 

If  in  the  case  now  under  examination,  the  consideration  of 
the  deed  from  the  complainant  to  the  defendant,  instead  of 
being,  as  is  alleged,  twenty-five  thousand  dollars  of  stock  in 
the  Okisko  Company,  had  been  the  conveyance  by  the  defend- 
ant to  the  complainant  of  real  estate  of  the  same  value,  and 
each  deed  had  been  upon  a  money  consideration  expressed,  is 
it  possible,  that  upon  a  bill  filed  by  one  of  the  grantors,  claim- 
ing the  enforcement  of  the  vendor's  lien,  this  court  must  have 
given  him  a  decree  for  a  sale  of  the  property,  upon  proof  that 
the  monied  consideration  expressed,  had  not  been  paid  ?  And 
that,  the  other  vendor  must  in  like  manner  proceed  upon  his 
equitable  lien  to  recover  his  money,  which  in  case  of  any 
serious  deterioration  of  the  property,  from  any  cause,  might 
be  impossible. 


ELYSVILLE  MANUFACTURING  CO.  VS.  OKISKO  CO.      397 

The  question  in  such  a  case,  would  not  be,  whether  a  deed 
shown  to  be  fraudulent  and  void,  by  disproving  the  considera- 
tion expressed,  could  be  set  up  by  evidence  of  a  different  con- 
sideration ;  but  whether  a  party  asking  the  assistance  of  the 
court  to  enforce  the  payment  of  the  purchase  money,  had  in 
fact  been  paid.  And  whether  paid  in  money,  or  in  something 
which  he  agreed  to  receive  as  money,  cannot  be  material. 

I  am,  therefore,  of  opinion,  that  the  evidence  is  admissible. 

It  is  said,  however,  that  though  the  evidence  may  be  ad- 
missible, there  is  no  sufficient  proof  to  establish  either  the 
agreement  set  up  in  the  answer,  or  a  valid  subscription  binding 
the  complainant,  the  Elysville  Manufacturing  Company,  to  the 
stock  of  the  defendant. 

With  regard  to  the  agreement,  that  the  complainant  would 
convey  to  the  defendant  the  property  in  the  deed  mentioned,  in 
consideration  of  receiving  twenty-five  thousand  dollars  of  the 
capital  stock  of  the  defendant,  I  am  persuaded,  that  a  reason- 
able doubt  cannot  be  entertained. 

There  is,  in  the  record,  a  mass  of  evidence  upon  the  point, 
both  oral  and  written,  which,  in  my  judgment,  irresistibly  con- 
ducts the  mind  to  the  conclusion ;  and  many  of  the  well 
authenticated  and  admitted  acts,  and  declarations  of  the  parties 
can  be  accounted  for  upon  no  other  hypothesis.  It  would  be 
tedious  and  useless,  to  recapitulate  the  evidence  upon  which 
this  conviction  rests  ;  and  I  content  myself  with  saying,  that 
after  listening  with  much  attention  to  the  comments  of  counsel 
and  carefully  reading  the  proof,  I  am  unable  to  see  how  it  is 
possible  to  arrive  at  a  different  result. 

The  only  remaining  question  relates  to  the  validity  of  the 
subscription,  by  the  complainant,  to  the  capital  stock  of  the  de- 
fendant. The  subscription,  in  point  of  fact,  by  the  president 
of  the  former  company,  is  not  denied  ;  nor  is  it  denied,  that  at 
or  about  the  time  the  deed  was  delivered  to  the  defendant,  the 
attorney,  in  fact  of  the  complainant,  by  whom  the  delivery  was 
made,  received  from  the  defendant  a  certificate  for  the  stock, 
and  that  this  certificate  has  never  been  returned  to  the  defend- 
ant since. 

VOL.  i — 34 


398  HIGH  COURT  OF  CHANCERY. 

The  validity  of  the  subscription  is,  however,  questioned 
upon  two  grounds  ;  first,  because  the  president  of  the  Elys- 
ville  Company,  by  whom  it  was  made,  was  not  authorized  to 
make  it.  And,  secondly,  because  the  ten  dollars  on  each 
share,  required  by  the  8th  section  of  the  charter  of  the  defend- 
ant, to  be  paid  at  the  time  of  making  the  subscription,  were 
not  paid  in  money. 

In  urging  the  first  objection,  it  is  said,  that  a  corporation 
aggregate  must  act  collectively,  and  by  vote,  or  resolution. 
But  though  this  may  be  true,  it  is  now  well  settled  in  tnis 
country,  that  the  acts  of  a  corporation  evidenced  by  a  vote, 
written  or  unwritten,  are  as  completely  binding  upon  it,  and  as 
full  authority  to  its  agents,  as  the  most  solemn  acts  done  under 
the  corporate  seal ;  and,  that  promises  and  engagements  may 
as  well  be  implied  from  its  acts,  and  the  acts  of  its  agents,  as 
if  it  were  an  individual.  Jlngel  on  Corporations,  60,  127, 
128. 

In  the  case  of  the  Union  Bank  vs.  Ridgely,  1  H.  8f  Gf.,  426, 
the  court  say,  "that  the  same  presumptions  arise  from  the  acts 
of  corporations,  as  from  the  acts  of  individuals ;  consequently 
that  the  corporate  assent,  and  corporate  acts,  not  reduced  to 
writing,  may  be  inferred  from  other  facts  and  circumstances, 
without  a  violation  of  any  known  rule  of  evidence." 

And  again,  in  Burgess  vs.  Pue,  2  Gill,  254,  the  court  say, 
"a  vote  or  resolution  appointing  an  agent,  need  not  be  entered 
on  the  minutes,  but  may  be  inferred  from  the  permission  or 
acceptance  of  his  services."  "And,  that  acts  done  by  a  cor- 
poration, which  pre-suppose  the  existence  of  other  acts,  to 
make  them  legally  operative,  are  presumptive  proof  of  the 
latter." 

Such  being  the  law  upon  the  subject,  and  it  being  quite  com- 
petent to  this  court,  without  the  production  of  an  express  au- 
thority from  the  Elysville  corporation  to  its  president  to  make 
the  subscription  in  question,  to  infer  it  from  other  acts,  I  am 
clearly  of  opinion,  that  the  facts  and  circumstances  of  this 
case  are  quite  sufficient  to  warrant  the  inference — the  fact  of 
the  receipt  of  the  certificate  by  the  agent  of  the  complainant — 


ELYSV1LLE  MANUFACTURING  CO.  VS.  OKISKO  CO.        399 

its  retention  to  the  present  time,  so  far  as  the  record  informs  us, 
and  that  the  stock  has  been  voted,  on  two  occasions,  by  an 
officer  or  member  of  the  corporation  of  the  complainant,  are 
acts  which  pre-suppose  the  existence  of  the  other  acts,  to  wit : 
The  authority  to  the  president  to  make  the  subscription. 

The  other  ground  upon  which  the  validity  of  this  subscrip- 
tion is  assailed,  is  that  the  ten  dollars  required  by  the  eighth 
section  of  the  charter  to  be  paid  at  the  time  of  subscription,  have 
not  been  paid. 

It  may  be  remarked,  upon  this  objection,  that  it  is  taken  by 
a  party  who  holds  a  certificate  for  the  stock  subscribed  by  him, 
and  has  held  it  for  upwards  of  two  years.  That,  in  consequence 
of  this  subscription,  and  the  conveyance  of  the  property,  made 
by  such  party,  the  other  members  of  the  corporation  have  ad- 
vanced large  sums  of  money  upon  their  subscriptions,  which 
sums  have  been  expended  upon  the  property  now  attempted  to 
be  affected  by  the  vendor's  lien  ;  and,  that  if  the  efforts  of  the 
vendors  are  successful,  the  moneys  so  expended  may  be  en- 
tirely lost  to  the  associates  of  the  vendors.  The  attempt,  there- 
fore, as  it  seems  to  me,  is  destitute  of  any  support  in  equity. 
It  appears  to  be  quite  apparent,  that  if  these  vendors  had  not 
subscribed  for  the  stock,  and  executed  the  deed  of  the  20th  of 
August,  1846,  the  other  members  of  the  corporation  would  not 
have  advanced  their  money.  The  subscription  was  not  only 
made,  and  the  deed  executed,  pursuant  to  the  agreement  of  the 
parties,  but  there  has  been,  so  far  as  the  record  discloses,  an 
entire  acquiescence  on  the  part  of  the  vendor,  from  that  time 
until  this  bill  was  filed,  in  September,  1848,  and  not  only  a 
passive  acquiescence,  but  an  active  participation  on  the  part  of 
the  vendor  in  the  affairs  of  the  corporation,  by  attending  and 
voting  at  the  corporate  meetings.  There  do  not  appear  to  be 
any  grounds  for  doubting,  that  until  this  bill  was  filed,  the  de- 
fendant considered  the  complainant  a  stockholder  in  the  cor- 
poration ;  and,  that  the  money  of  the  other  corporators  was  ex- 
pended upon  the  faith  of  that  conviction,  and  my  impression 
is,  that  conviction  on  the  part  of  the  defendant,  was  the  natural 
result  of  the  conduct  of  the  complainant. 


400  HIGH  COURT  OF  CHANCERY. 

The  case  relied  upon  by  the  complainant's  counsel  in  1 
Caine's  Rep.,  381,  The  Union  Turnpike  Company  vs.  Jenkins, 
is  entirely  unlike  this  case  in  some  of  its  most  essential  features. 
In  that  case,  which  was  an  action  of  assumpsit  brought  by  the 
company  against  the  defendant,  to  recover  certain  payments 
called  for  pursuant  to  the  act  of  incorporation,  the  court  decid- 
ed that  the  payment  of  ten  dollars  on  each  share,  required  to  be 
paid  at  the  time  of  subscribing,  was  essential  to  the  consumma- 
tion of  the  contract;  and  that  without  such  payment  the  court 
was  at  a  loss  to  see  any  consideration  for  the  promise  to  pay 
the  remaining  instalments.  The  subscription  and  payment 
were  both  regarded  as  necessary  to  perfect  the  contract.  That 
unless  the  concurrence  of  both  could  be  shown,  the  defendant 
could  not  be  regarded  as  entitled  to  the  rights  of  a  stockholder. 
And  the  Chief  Justice  remarked,  that  if  the  speculation  had 
been  an  advantageous  one,  and  before  the  first  call  of  the  pre- 
sident and  directors  the  stock  had  risen  considerably  in  value, 
they  could  have  refused  to  consider  the  defendant  as  a  stock- 
holder, on  account  of  his  not  having  made  the  payment  requir- 
ed by  the  act,  at  the  time  of  subscribing.  This  want  of  mutu- 
ality, therefore,  was  the  ground  upon  which  the  defendant  was 
held  not  responsible  for  the  payments  called  in.  This  con- 
stituted the  want  of  consideration  necessary  to  maintain  the 
action. 

But  this  case  is  not  at  all  like  that.  Here,  the  Elysville  Com- 
pany have  received  a  certificate  for  the  stock  subscribed  by  its 
president,  and  have  executed  a  deed  to  the  defendant,  of  prop- 
erty, as  the  equivalent  for,  and  in  payment  of,  the  stock.  The 
contract,  therefore,  is  no  longer  executory,  but  is  an  executed 
contract  on  both  sides  ;  and  the  attempt  here  is,  not  to  resist 
the  performance  of  an  executory  agreement,  upon  the  ground 
that  some  act  was  not  done,  essential  to  give  it  legal  validity  ; 
but  to  cancel  and  abrogate  a  contract  carried  into  full  and  com- 
plete execution  by  both  parties.  Suppose  in  the  case  referred 
to,  the  defendant  had  paid  up  the  instalments  as  they  were 
called  in,  and  had  received  a  certificate  for  the  stock  ;  would  it 
have  been  possible  for  him,  or  the  company,  thereafter  to  repu- 


CROUCH  VS.  SMITH.  401 

diate  the  subscription,  upon  the  ground  that  he  did  not  pay  the 
ten  dollars  at  the  time  of  subscribing  ?  It  seems  impossible  to 
suppose  that  this  could  be  done  ;  and  yet  such  is  the  effort  here 
on  the  part  of  this  complainant.  After  paying  as  agreed  upon  ; 
receiving  a  certificate  for  the  stock ;  attending  and  voting  at 
corporate  meetings ;  and  acquiescing  for  two  years,  during 
which  large  sums  of  money  are  expended  by  the  other  subscrib- 
ers, an  effort  is  made  to  repudiate  the  whole  proceeding  and 
recover  back  the  consideration  paid.  I  think  this  cannot  be 
done,  and  shall,  therefore,  dissolve  the  injunction  ;  and  the  de- 
cision of  this  motion  necessarily  disposes  of  the  petition*  filed 
the  3d  of  March  last. 


THOMAS  M.  CROUCH  ET 

vs.  >     MARCH  TERM,  1849. 

HARRIET  SMITH  ET  AL. 


AL.^ 
j.      J 


[VALUATION  OF  COMMISSIONERS — WOOD  CUT  NOT  REALTY.] 

COMMISSIONERS  having  been  appointed  by  the  parties  to  value  a  certain  priv- 
ilege of  cutting  wood  and  timber,  to  which  the  widow  and  son  of  a  testator 
were,  by  his  will,  entitled  ;  it  was  HELD — that  the  maxim,  omnia  rite  esse  acta 
prcKsumuntur,  is  applicable  to  the  proceedings  of  these  commissioners,  and, 
that  every  fair  intendment  should  be  made  in  support  of  their  acts. 

The  rule  which  applies  to  the  valuations  made  by  commissioners  appointed  to 
divide  real  estate,  that  such  valuations,  though  not  conclusive  and  liable  to 
be  rejected,  if  clearly  shown  to  be  erroneous,  are  entitled  to  great  respect, 
and  are  not  to  be  disturbed,  unless  the  weight  of  evidence  in  opposition  to 
them  is  decidedly  preponderating,  is  applicable  also  to  the  valuation  made 
by  these  commissioners. 

Wood  and  timber  cut  down  prior  to  the  sale  of  the  land,  does  not  pass  to  the 
purchaser,  but  is  severed  from  the  inheritance,  and  becomes  personal  prop- 
erty. 

[Walter  Smith,  deceased,  of  Prince  George's  county,  by  his 
will,  devised  certain  lands  to  his  widow,  and  to  his  son  Walter, 

*The  petition  referred  to  was  filed  by  the  complainants,  stating  that  the 
property  in  dispute  was  lying  idle  and  unused,  and  was  going  to  decay,  and 
praying  that  it  might  be  sold,  and  the  proceeds  of  sale  deposited  in  court,  to 
abide  the  issue  of  the  cause. 

34* 


402  HIGH  COURT  OP   CHANCERY. 

and  gave  them  the  privilege  of  cutting  from  his  lands  in  Anne 
Arundel  county,  devised  to  his  four  unmarried  daughters,  "so 
much  wood  and  timber  as  might  be  necessary  for  the  support 
of  the  lands"  devised  to  his  said  widow  and  son. 

The  lands  out  of  which  this  privilege  was  granted  were  after- 
wards sold  under  a  decree  of  this  court,  with  the  understanding 
that  the  widow  and  son  of  the  testator,  should  receive  out  of 
the  proceeds  of  sale,  so  much  in  lieu  of  said  privilege  as  the 
Chancellor  might  deem  right ;  and  certain  persons  having 
been  appointed  to  value  the  same,  they  reported,  that  the  widow 
was  entitled  to  receive  $150  and  the  son  $500. 

At  this  stage  of  the  proceedings  a  petition  was  filed  by 
Crouch  and  Lazenby,  who  had  intermarried  with  two  of  the 
parties  entitled  to  a  share  of  the  proceeds  of  the  land  sold,  and 
who  were  also  the  purchasers  thereof,  objecting  to  the  ratifica- 
tion of  this  report,  on  the  ground,  that  Walter  Smith  had,  after 
the  sale  of  the  property,  removed  from  the  premises  a  quantity 
of  wood  and  rail  stuff  which  had  been  previously  cut  down  by 
him ;  and  praying,  in  the  event  of  the  sale  being  ratified,  that 
the  value  of  the  wood  and  timber  so  cut,  might  be  deducted 
from  the  proportions  of  the  valuation  to  be  paid  by  the  petition- 
ers to  said  Smith. 

The  right  of  Walter  Smith  to  exercise  the  privilege  granted 
him  by  his  father's  will,  had  never  been  called  in  question  by 
the  previous  proceedings,  nor  was  any  notice  given  by  this  pe- 
tition of  an  attempt  to  resist  it ;  but  at  the  hearing,  the  counsel 
for  the  petitioners  contended  that  the  testator,  by  a  codicil  to  his 
will,  had  revoked  the  privilege,  and  that  said  Walter  was  not 
entitled  to  any  allowance  in  lieu  thereof. 

The  matter  of  this  petition  having  been  argued  by  counsel, 
the  Chancellor  at  this  term,  after  stating  the  case,  delivered  his 
opinion,  as  follows :] 

THE  CHANCELLOR : 

It  appears  by  the  evidence,  that  the  wood  and  rails  which 
had  been  thus  removed  by  Smith,  amounting  probably  to  some 
sixty  or  eighty  dollars  in  value,  were  cut  by  him  prior  to  the 


CROUCH  VS.  SMITH.  403 

agreement  of  the  8th  of  May,  1848,  (making  the  allowance  to 
Smith  and  his  mother  in  lieu  of  their  right  to  cut  wood,)  under 
which  the  decree  was  passed,  and  the  only  question  presented 
by  the  petition  and  answer,  is,  whether  the  removal  of  this 
wood  and  rail  stuff  by  Smith,  after  the  sale,  is  a  sufficient  rea- 
son to  reject  the  return  of  the  commissioners  ;  or  whether  the 
court  may  not  itself  so  far  modify  their  return,  as  to  order  a 
proportion  of  the  value  thereof  to  be  deducted  from  the  sums 
to  be  paid  by  the  petitioners. 

One  of  the  questions,  therefore,  discussed  by  the  counsel  for 
the  petitioners  in  the  argument,  is  not  raised  by  the  petition  ; 
and  as  the  respondent  Smith  was  not  notified  by  it,  that  his 
entire  right  to  cut  wood  and  timber  from  this  land  would  be 
disputed,  and,  therefore,  may  have  omitted  to  offer  the  proof 
which,  under  other  circumstances  may  have  been  in  his  reach, 
it  might  not  be  proper  to  permit  this  question  to  be  brought  into 
view.  Smith  was  not  apprised  by  the  petition  of  Crouch  and 
Lazenby,  that  the  privilege  given  him  by  the  will  of  his  father, 
to  cut  wood  and  timber  from  this  land,  was  supposed  to  be  re- 
voked by  the  codicil.  On  the  contrary,  all  the  previous  pro- 
ceedings in  the  cause  distinctly  recognized  the  continued  ex- 
istence of  this  right,  and  the  only  question  which  he  was  called 
upon  to  meet,  had  reference  to  the  effect  upon  the  valuation  of 
the  selected  appraisers  of  the  parties,  which  it  was  alleged  ought 
to  be  produced  by  the  removal  of  the  wood  and  rails  in  ques- 
tion. 

It  is  now,  however,  said,  that  the  codicil  to  the  will  of  the 
testator  must  be  regarded  as  revoking  altogether  the  privilege 
in  question,  given  by  the  will  to  the  widow  and  son  of  the  tes- 
tator ;  or  at  all  events,  that  if  it  does  not  amount  to  a  total  re- 
vocation of  the  will  in  that  particular,  it  must  be  considered  as 
reducing  to  some  extent  the  value  of  the  privilege,  and  that, 
therefore,  the  estimate  of  the  commissioners  is  excessive,  and 
should  be  rejected. 

I  am  very  clearly  of  opinion,  that  even  if  the  question  was 
properly  before  the  court,  and  these  petitioners  could  now,  not- 
withstanding their  reiterated  recognition  of  the  existence  of  the 


404  HIGH  COURT  OF  CHANCERY. 

privilege  in  question,  deny  it,  and  make  it  the  subject  of  con- 
test, the  objection  could  not  be  maintained. 

It  seems  to  me,  that  if  the  testator  had  designed  to  revoke 
the  privilege  in  question,  and  throw  these  parties  altogether 
upon  other  sources  of  supply  for  their  wood  and  timber,  he 
would  have  done  so  in  express  terms  and  not  have  left  it  to  im- 
plication. He  certainly  does  not  do  so  in  express  terms,  nor 
is  there  such  an  inconsistency,  or  conflict,  between  the  provi- 
sions of  the  will  and  codicil  that  both  may  not  well  stand  to- 
gether. 

That  the  weight  of  the  burden  to  be  borne  by  the  Anne 
Arundel  county  land,  was  intended  to  be  diminished  by  the 
purchase  of  the  land  mentioned  in  the  codicil,  is,  I  think,  quite 
apparent;  and,  therefore,  in  estimating  the  value  of  that  bur- 
den, and  the  corresponding  privilege,  it  was  the  duty  of  the 
parties  selected  for  the  purpose,  to  take  that  circumstance  into 
their  consideration  ;  and  we  are  told  by  Dr.  Cheston,  one  of 
those  parties,  that  they  were  aware  of  it,  and  of  the  rights  of 
Mr.  Smith,  under  the  will  and  codicil  of  his  father,  which  were 
before  them. 

It  must,  therefore,  be  presumed,  that  the  proper  weight  was 
given  by  the  commissioners  to  this  source  of  supply,  and  more 
especially  would  the  court  be  indisposed  to  reject  their  valua- 
tion for  this  reason,  when  the  petitioners  themselves  did  not 
make  the  objection  in  their  petition,  so  as  to  give  the  other 
side  an  opportunity  of  denying  it  in  their  answer,  and  rebutting 
it  by  proof. 

My  opinion  is,  that  the  maxim  omnia  rite  esse  acta  prasu- 
muntur,  is  applicable  to  the  proceedings  of  these  commissioners, 
and  that  although  they  were  required  to  report  to  the  court,  sub- 
ject to  its  further  order  and  direction,  yet  still,  every  fair  in- 
tendment  should  be  made  in  support  of  their  acts. 

They  were  authorized  and  required  to  make  the  valuation 
upon  oath,  according  to  the  best  of  their  judgment,  and  this  they 
say  they  did  ;  and  by  no  allegation  in  the  petition  is  their  judg- 
ment in  this  respect  called  iu  question. 

In  the  case  of  Cecil  vs.  Dorsey  et  al.,  this  court  was  recently 


CROUCH  VS.  SMITH.  405 

called  upon  to  consider  the  effect  which  should  be  given  to  the 
valuation  made  by  commissioners,  appointed  to  make  partition 
of  the  real  estate  among  the  parties  entitled  ;  and  upon  full  ar- 
gument and  deliberation  it  was  decided,  that  though  such  valu- 
ation was  not  conclusive,  and  might  be  rejected  if  clearly  shown 
to  be  erroneous,  yet  still  it  was  entitled  to  great  respect,  and 
would  not  be  disturbed  unless  the  weight  of  evidence  in  oppo- 
sition to  it  was  decidedly  preponderating. 

The  commissioners  were  regarded  as  occupying  the  double 
capacity  of  arbitrators  and  witnesses,  and  it  was  thought  that 
the  court  would  not  be  justified  in  reversing  their  judgment, 
unless  upon  evidence  of  error  as  strong  or  stronger  than  would 
induce  a  court  of  law  to  reject  the  verdict  of  a  jury,  and  order 
a  new  trial.  Such  was  the  view  taken  by  this  court  of  the  prin- 
ciple which  should  govern  it,  when  dealing  with  the  valuation 
of  commissioners  in  cases  of  partition,  and  no  reason  is  seen 
why  the  same  rule  should  not  be  observed  on  this  occasion, 
when  the  judgment  of  persons  selected  by  the  parties  interest- 
ed, is  under  review. 

Supposing,  then,  that  these  petitioners,  Crouch  and  Lazenby, 
had  impeached  the  valuation  of  the  commissioners  in  this  case, 
upon  the  ground  of  its  being  excessive,  (which,  however,  they 
have  not  done,)  it.  certainly  would  be  incumbent  upon  them  to 
make  out  a  strong  case  to  induce  the  court  to  reject  it. 

This  they  have  not  only  failed  to  do,  but  the  case  is  wholly 
destitute  of  proof  upon  the  point.  Not  a  single  witness  has  said 
that  the  valuation  is  too  high,  and  the  petitioners  attempt  to 
make  out  their  case  upon  the  hypothesis,  that  the  commission- 
ers in  forming  their  judgment,  did  not  take  into  consideration 
the  clause  in  the  codicil  to  the  will,  by  which  another  source 
of  supply  of  wood  and  timber  was  provided  for  Mr.  Smith. 
And  this  course  of  reasoning  is  adopted,  although  one  of  the 
commissioners  says,  expressly,  in  his  evidence,  that  the  will  and 
codicil  was  before  them,  and  that  they  were  aware  of  the  rights 
of  Smith  under  them.  In  view  of  these  circumstances,  and 
looking  to  the  evidence  of  Henry  W.  Tomlin,  one  of  the  parties 
in  interest,  identical  with  the  petitioners,  and  that  of  George 


406  HIGH  COURT  OF    CHANCERY. 

W.  Hilleary,  one  of  the  commissioners,  who  testifies  that 
Crouch  said  that  the  valuation  was  lower  than  he  anticipated, 
it  would  seem  impossible  that  this  ground  of  complaint  can  be 
maintained. 

The  only  objection  urged  in  the  petition  is,  that  Walter 
Smith  had  removed  from  the  land,  after  the  sale,  certain  parcels 
of  wood  and  rail  stuff,  which  he  had  previously  cut  down  in  the 
exercise  of  the  right  given  him  by  the  will.  This,  it  is  said, 
was  not  known  to  the  persons  selected  to  make  the  valuation, 
and  if  known  would  have  had  an  influence  upon  their  judg- 
ment, and  reduce  the  amount  allowed  by  them  to  Mr.  Smith. 

It  is  very  certain  that  as  this  wood  and  timber  had  been  cut 
down  prior  to  the  sale,  it  did  not  pass  to  the  purchasers  of  the 
land  ;  it  was  severed  from  the  inheritance  and  became,  and  was, 
personal  property,  and  having  been  cut  by  Smith  in  the  fair 
exercise  of  the  right  given  him  by  the  will,  was  his  property  ; 
and  no  reservation  was  required  to  authorize  him  to  remove  it. 

The  commissioners  made  their  valuation  ou  the  25th  of  Sep- 
tember, 1848,  after  the  wood  and  rails  had  been  removed,  and 
it  is  to  be  presumed,  their  estimate  was  a  prospective  one,  hav- 
ing reference  exclusively  to  the  future.  Two  of  the  commis- 
sioners say,  that  the  right  claimed,  and  exercised  by  Smith,  to 
remove  the  wood  and  rails,  if  known  to  them  would  have  had 
no  influence  upon  their  judgment ;  and  I  can  see  nothing  in  the 
statement  of  the  other  which  would  induce  me,  under  all  the 
circumstances  of  this  case,  to  reject  the  return. 

If  Mr.  Tomlin  is  to  be  believed,  and  there  is  not  certainly 
the  slightest  ground  to  impugn  his  credit,  which  is  entitled  to 
the  more  weight,  because  he  is  swearing  against  his  interest, 
Crouch  knew,  and  consented  that  Smith  should  take  the  wood 
and  rails  away,  and  it  is  clearly  shown  by  the  evidence  of  Mr. 
Hilleary,  that  the  valuation  was  less  than  Crouch  expected. 

The  petition  must,  therefore,  be  dismissed,  and  the  return  of 
the  commissioners  ratified. 

[No  appeal  was  taken  from  this  order.] 


ALBERT  VS.  SAVINGS   BANK  OF  BALTIMORE.  4Q7 


WILLIAM  J.  ALBERT 
AND  EMILY  J.  ALBERT,  HIS  WIFE, 

vs-  \      JULY  TERM,  1849. 

THE  SAVINGS  BANK  OF  BALTI- 
MORE   ET  AL. 

[BONA  FIDE  PURCHASER  OP  STOCK — TRUSTEE'S  RIGHT  TO  TRAKSFER — EXECUTED 
CONTRACT  OF  A  CORPORATION    FORBIDDEN  BY  ITS  CHARTER — LIABIL- 
ITY   OF   A    CORPORATION    ON  TRANSFERS  OF  ITS  STOCKS.] 

A  BONA  FIDE  purchaser  of  stock  in  a  bank  or  other  corporation,  standing  in  the 
name  of  trustees,  without  notice  of  the  trust,  will  be  protected,  whether  the 
trustees  have  the  legal  authority  to  make  the  transfer  or  not. 

If  there  be  no  fraud  or  collusion,  the  bank  and  not  the  transferee  must  abide 
the  loss,  if  a  loss  be  sustained  by  any  act  of  the  proper  officer  of  the  bank  in 
the  transfer  of  its  stock,  arising  either  from  a  misconception  of  his  duty  or  a 
want  of  judgment. 

The  mere  addition  of  the  word  "trustee"  to  the  name  of  the  person  who  ap- 
pears on  the  books  of  a  corporation  as  the  stockholder,  with  nothing  to  indi- 
cate the  character  of  the  trust,  or  the  party  beneficially  interested,  will  not 
deprive  him  of  the  legal  capacity  to  transfer  the  stock,  though  by  so  doing, 
he  may  commit  a  breach  of  trust. 

A  corporation  may  avail  itself  of  its  want  of  authority  to  make  the  contract 
sought  to  be  enforced  against  it,  though  it  has  received  and  enjoyed  the  con- 
sideration upon  which  it  was  made. 

But,  where  a  contract  of  a  corporation  has  been  executed  by  the  parties  to  it,  it 
is  not  competent  for  a  mere  stranger  to  the  contract  to  assail  it,  and  deprive 
the  corporation  of  the  advantage  derived  from  it,  upon  the  ground,  that  it  was 
interdicted  by  the  charter. 

Where  the  entry  on  the  transfer  book  of  a  bank  displayed  the  origin,  nature 
and  character  of  the  trust,  and  who  were  the  beneficiaries,  it  was  HELD — 
that  the  bank  had  notice  of  the  trusts  with  which  the  stock  was  clothed,  and 
would  be  responsible,  if  it  permitted  a  transfer  to  be  made  by  other  persons 
than  the  trustees,  who  alone  were  authorized  to  make  it. 

In  such  case,  if  the  trustees  themselves  should  offer  to  transfer,  under  circum- 
stances calculated  so  excite  suspicion  that  they  were  about  to  abuse  their 
trust,  the  bank  would  be  bound  to  institute  the  necessary  inquiry  ;  and  if  it 
omitted  to  do  so,  and  loss  resulted,  the  loss  would  be  thrown  upon  it. 

Where  a  party  transfers  stock  as  "executor,"  the  bank  must  know  that  there  is 
a  will  of  which,  in  Maryland,  it  is  bound  to  take  notice. 

But,  where  the  entry  upon  the  books  of  a  corporation  only  showed  that  the 
stock  stood  in  the  names  of  certain  persons,  as  trustees,  without  showing 
who  were  the  cetuis  que  trusts,  or  what  the  nature  of  the  trust  was,  it  was 
HELD — that  this  entry  standing  by  itself,  was  not  sufficient  to  put  the  corpor- 
ation upon  the  inquiry,  and  to  make  it  responsible,  on  the  grouud  of  negli- 
gence. 


408  HIGH  COURT  OF  CHANCERY. 

THE  CHANCELLOR: 

This  case  presents  questions  of  importance  and  difficulty. 

By  the  will  of  Talbot  Jones,  who  died  in  the  year  1834,  there 
was  bequeathed  to  the  testator's  two  sons,  Samuel  Jones  and 
Andrew  D.  Jones,  and  the  survivor  of  them,  a  portion  of  his 
estate,  in  trust,  for  the  use  and  benefit  of  his  daughter,  Emily 
Jane  Jones,  now  Mrs.  Albert,  and  one  of  the  complainants,  dur- 
ing her  natural  life  ;  to  the  end  that  she,  during  that  period,  be 
permitted  to  have  and  enjoy  the  same,  and  the  income  and 
profits  thereof,  to  her  own  use  and  benefit,  and  without  being 
subject  to  the  control,  power,  or  disposal  of  any  husband  she 
might  thereafter  have,  or  in  any  manner  liable  for  the  payment 
of  his  debts  ;  and  for  the  income  thereof,  her  receipts,  whether 
sole  or  covert,  are  made  sufficient  discharges  ;  and  by  the  will, 
the  parties  named  as  trustees  are  made  executors. 

Afterwards,  upon  a  bill  filed  by  certain  of  the  parties  in  in- 
terest, against  the  said  executors  and  trustees,  for  the  purpose 
of  obtaining  the  direction  and  aid  of  the  court,  in  the  execution 
of  the  trust,  and  for  other  purposes,  a  decree  passed  on  the  6th 
of  November,  1841,  by  which  it  was,  among  other  things,  ad- 
judged, that  said  Samuel  and  Andrew  D.  Jones,  as  trustees  un- 
der said  will,  should  hold  in  trust,  to  and  for  the  use  of  Emily 
J.  Albert,  certain  property  therein  mentioned  ;  included  in  which 
are  several  sums  of  the  six  per  cent,  stock  debt  of  the  city  of 
Baltimore,  amounting  together  to  86,300. 

It  does  not  appear  from  the  will  of  Talbot  Jones,  whether 
any  portion  of  the  stock  debt  of  the  city  of  Baltimore  was  in- 
cluded in  the  devise  and  bequest  for  the  use  of  his  daughter, 
the  present  Mrs.  Albert,  the  property  so  devised,  consisting  of 
other  stocks  which  are  enumerated ;  portions  of  his  real  estate 
and  the  rest  and  residue  thereof.  But  it  does  not  appear  that 
on  the  20th  of  November,  1841,  Samuel  Jones  and  Andrew  D. 
Jones,  executors  of  Talbot  Jones,  transferred  by  endorsements 
on  the  certificates  to  themselves,  as  trustees,  three  parcels  of  said 
stock,  amounting  in  the  aggregate  to  the  sum  of  $6,299  99 ; 
and  that  the  dividends  upon  this  stock  from  the  1st  of  January, 
1842,  to  the  1st  of  October,  1845,  inclusive,  were  paid  to  Wil- 


ALBERT  VS.  THE  SAVINGS  BANK  OF  BALTIMORE.   4Q9 

liam  G.  Albert,  the  husband,  upon  an  authority  to  Emily  J.  Al- 
bert, dated  the  10th  of  December,  1841,  and  signed  by  Samuel 
and  Andrew  D.  Jones,  executors. 

It  further  appears  that  on  the  16th  day  of  October,  in  the 
year  1845,  this  stock  was  transferred  to  the  Savings  Bank  of 
Baltimore,  by  the  endorsation  of  the  said  trustees  and  filing  the 
original  certificates  in  the  office  of  the  register  of  the  city,  to 
secure  the  repayment  of  the  sum  of  $5,500,  loaned  by  the 
bank  to  the  commercial  firm  of  Talbot  Jones  &  Co.,  which 
consisted  at  that  time  of  the  said  Samuel  Jones  only.  The 
original  certificates,  copies  of  which  are  produced,  and  which 
amount  to  the  sum  mentioned,  certify,  "that  the  corporation  of 
the  city  of  Baltimore  is  indebted  to  Samuel  Jones  and  Andrew 
D.  Jones,  trustees,"  the  several  sums  of  money  therein  ex- 
pressed, and  u^.w.1  the  back  of  each  of  them  an  authority  to 
transfer  to  the  Savings  Bank  of  Baltimore  is  signed  by  these 
parties,  as  such  trustees.  Certificates  were  issued  to  the  bank 
accordingly,  dated  on  the  day  of  the  transfer  by  the  trustees, 
signed  by  the  proper  officers  of  the  city,  stating  that  the  city 
was  indebted  to  the  bank  in  the  sums  of  money  mentioned  in 
the  certificate,  and  thus  stood  in  the  name  of  the  bank  until  the 
19th  of  January,  1847,  when  a  note  given  by  Talbot  Jones  & 
Co.,  in  renewal  of  the  note  first  given  for  the  money  loaned, 
not  having  been  paid,  the  stock  was  sold  by  the  bank  for  its 
reimbursement,  leaving  in  its  hands  a  surplus  of  $656  90,  which 
is  held  for  the  use  of  the  person  legally  entitled  thereto. 

The  bank  denies  all  knowledge  of  the  decree  of  the  6th  of 
November,  1841,  and  of  the  trust  for  the  female  complainant; 
or  that  the  stock  in  question  stood  upon  the  books  of  the  city 
in  the  names  of  Samuel  and  Andrew  D.  Jones,  as  trustees  ;  or 
that  the  same  was  transferred  to  it  by  said  trustees.  It  denies 
that  it  knew  at  the  time  or  knows  now,  by  whom  the  transfer 
was  made,  being  satisfied  with,  and  not  looking  or  supposing 
they  were  bound  to  look  beyond  what  appeared  upon  the  face 
of  the  certificates ;  and  it  may  be  stated  without  qualification 
or  reserve,  that  there  is  nothing  in  the  record  to  show  that  the 

VOL  i — 35 


410  HIGH   COURT   OF  CHANCERY. 

bank  knew,  or  had  reason  to  suspect,  that  the  said  stock  was 
affected  by  a  trust  of  any  description  whatsoever. 

In  truth,  the  counsel  for  the  complainants  was  not  understood 
to  ask  for  a  decree  against  the  bank  upon  the  ground  of  either 
actual  or  constructive  notice  of  the  trust ;  the  right  to  relief,  as 
against  it,  being  claimed  upon  other  grounds. 

Assuming  that  the  trustees  had  the  power  to  sell  and  trans- 
fer this  stock,  it  would  seem  to  be  unquestionable  that  the  bank, 
regarded  as  a  bona  fide  purchaser,  and  without  notice,  will  be 
protected.  The  opinion  of  the  Circuit  Court  of  the  United 
States  for  the  Maryland  District,  in  the  case  of  Lowry  vs.  The 
Commercial  and  Farmers  Bank  of  Baltimore,  and  others,  de- 
livered by  the  Chief  Justice,  in  July,  1848,  is  very  clear  and 
full  upon  this  point ;  and  the  same  principle  was  conceded  in 
the  case  of  Wayman  and  Stockett  vs.  The  Westminster  Bank,  et. 
al.,  5  Gill,  336. 

The  mischiefs  which  would  be  consequent  upon  a  different 
doctrine,  in  disturbing  the  usages  of  trade  and  business,  and 
in  depreciating  the  value  of  property  of  this  description,  are 
stated  forcibly  by  the  Chief  Justice  in  the  case  referred  to,  and 
are  distinctly  presented  by  the  court  in  the  case  of  Davis  vs. 
The  Bank  of  England,  9  Eng.  Com.  Law  Reps.  444.  In  the 
latter  case,  though  the  property  in  the  stock  did  not  pass,  the 
transfer  having  been  made  by  a  forged  power  of  attorney,  yet 
it  was  decided  that  a  bona  fide  purchaser  from  the  party  who 
committed  the  fraud  was  entitled  to  recover  from  the  bank  the 
dividend  which  fell  due  upon  the  stock,  which  consisted  of 
consolidated  annuities,  made  payable  at  the  Bank  of  England. 
The  Judge  said  in  that  case — "If  this  be  not  the  law,  who  will 
purchase  stock,  or  who  can  be  certain  that  the  stock  which  he 
holds  belongs  to  him  ?"  That  "this  facility  of  transfer  is  one 
of  the  advantages  belonging  to  this  species  of  property,  and 
this  advantage  would  be  entirely  destroyed  if  a  purchaser  should 
be  required  to  look  for  the  regularity  of  the  transfer  to  all  the 
various  persons  through  whom  such  stock  had  passed." 

The  case  of  Wayman  and  Stockett  vs.  The  Westminster  Bank, 
et  al.,  may,  perhaps, -be  understood  as  going  beyond  the  case 


ALBERT  VS.  THE  SAVINGS'  BANK  OF  BALTIMORE.   41 1 

decided  in  the  Circuit  Court,  for  in  that  case  the  stock  was 
transferred  by  parties  who  had  no  legal  authority  to  make  the 
transfer,  not  being  clothed  with  the  legal  title,  and  having  but 
a  limited  beneficial  interest  in  the  stock  itself,  and  yet  the 
Messrs.  Wilson,  who  took  the  transfer  from  parties  thus  desti- 
tute of  the  legal  capacity  to  sell,  and  having  but  a  limited  bene- 
ficial interest,  being  bona  fide  purchasers  without  notice,  were 
protected.  And  it  is  very  manifest,  that  unless  purchasers  may 
rely  with  confidence  upon  the  certificate  of  the  bank,  as  evi- 
dence of  ownership,  the  difficulty  of  tracing  out  the  true  title 
and  the  distrust  which  must  surround  this  description  of  property, 
will  materially  diminish  its  marketable  value.  In  the  case  of 
Hodges  vs.  the  Planters  Bank  of  Prince  Georges  County,  7 
G.  #  «/.,  306,  the  Court  of  Appeals  say — (speaking  of  a  trans- 
fer of  the  stock  of  a  bank  made  by  the  proper  officers  upon  the 
books,) — "If  fraud  or  collusion  exist,  it  will,  as  in  all  other 
cases,  vitiate  the  act ;  but  if  there  be  no  fraud  or  collusion,  the 
bank,  and  not  the  transferree,  must  abide  the  loss,  if  a  loss  be 
sustained  by  any  act  of  the  proper  officer  of  the  bank  arising 
either  from  a  misconception  of  his  duty  or  a  want  of  judgment." 

So  far,  therefore,  as  the  Savings  Bank  is  concerned,  they  be- 
ing bona  fide  purchasers  without  notice,  it  might  not  be  ne- 
cessary to  show  that  the  trustees,  Samuel  and  Andrew  D.  Jones, 
had  legal  authority  to  transfer  this  stock.  If  the  city  of  Balti- 
more suffered  them  to  make  the  transfer  upon  their  books,  and 
issued  a  certificate  to  the  transferree,  the  city,  and  not  the 
transferree,  must  bear  the  loss  ;  and  whether  the  title  to  the 
stock  passes  or  not,  the  latter  will  be  protected  ;  unless,  indeed, 
the  party  by  whose  negligence  or  default  the  loss  was  occa- 
sioned should  be  incapable  of  making  it  good  ;  which,  of  course, 
in  this  case  cannot  be  supposed. 

But  my  opinion  is,  that  Samuel  and  Andrew  D.  Jones  had 
the  legal  capacity  to  transfer  this  stock ;  though  they  may  have 
committed  a  breach  of  trust  in  doing  so. 

In  the  entry  in  the  books  of  the  city  there  was  added  to 
their  names,  as  proprietors  of  this  stock,  the  word  "trustees." 

The  language  of  the  entry,  as  appears  by  the  certificate,  is, 


412  HIGH   COURT  OF   CHANCERY 


the  corporation  of  the  city  of  Baltimore  is  indebted  to 
Samuel  Jones  and  Andrew  D.  Jones,  trustees,  in  the  sum  of," 
&c.;  but  there  was  nothing  there  to  show  who  was  the  cestui 
que  trust,  or  what  the  nature  of  the  trust  was  ;  nor  is  there  any 
ground  for  believing  that  the  officers  of  the  corporation  did 
know  in  fact. 

In  the  case  of  Harrison  vs.  Harrison,  which  was  supposed 
by  the  court  in  Davis  vs.  The  Bank  of  England,  to  be  best  re- 
ported in  2  Jltk.,  121,  the  legal  authority  of  the  trustee  to 
transfer  was  conceded  ;  though  in  doing  so  he  might  be  guilty 
of  a  breach  of  trust,  and  of  course  responsible  to  the  cestui  que 
trust. 

The  judge,  in  Davis  vs.  The  Bank  of  England,  in  remarking 
upon  this  case,  as  reported  in  Jltk.,  says  —  "In  this  report,  it 
appears  that  the  stock  was  transferred  by  a  trustee,  and  if  so, 
the  question  whether  a  transfer  unauthorized  by  a  stockholder 
would  alter  the  property  in  the  stock,  could  not  arise,  the  trustee 
having  a  legal  authority  to  transfer,  although  he  might  be  guil- 
ty of  a  breach  of  trust  in  exercising  that  authority." 

The  case  of  Stockdale  vs.  The  South  Sea  Company,  reported 
in  Barnardiston,  363,  has  been  relied  on  as  maintaining  a  con- 
trary doctrine  ;  but  I  do  not  so  understand  it.  In  that  case, 
speaking  of  the  company,  the  Lord  Chancellor  says  —  "How- 
ever, it  is  very  certain,  that  these  great  companies  are  only  to 
consider  the  person  in  whose  name  the  stock  is  standing,  un- 
less the  trust  of  the  stock  is  declared  on  their  books."  Now, 
what  is  meant  by  a  declaration  of  the  trust  ?  Does  it  mean  the 
mere  addition  of  the  word  "trustee"  to  the  name  of  the  person 
who  appears  upon  the  books  as  the  stockholder  ;  or  must  there 
not  be  something  indicating  the  character  of  the  trust,  or  the 
party  beneficially  interested  ? 

There  never  could  have  been  a  question,  I  presume,  of  the 
power  of  a  person  to  transfer  stock  in  whose  name  it  stood, 
simply,  and  without  any  addition  ;  and  when  the  courts  speak 
of  the  legal  authority  of  a  trustee  to  transfer,  they  must  be  un- 
derstood as  meaning  trustees,  who  are  known  to  be  such,  either 
by  some  entry  upon  the  books  of  the  corporation,  or  in  some 


ALBERT  VS.  SAVINGS  BANK  OF  BALTIMORE.  413 

other  way.  To  doubt  the  power  of  the  party  in  whose  name 
the  stock  stands,  when  there  is  nothing  to  show  that  he  holds 
it  in  a  fiduciary  character,  would  seem  to  be  impossible :  and, 
therefore,  when  questions  have  arisen  as  to  the  legal  authority 
of  the  trustee  to  sell  and  transfer,  it  must  be  understood  as  ap- 
plying to  cases  in  which  the  fiduciary  character  appears,  but 
there  is  nothing  to  indicate  the  nature  of  the  trust  or  the  bene- 
ficiaries. It  is  supposed  to  be  very  clear,  that  no  relief  can  be 
had  against  the  Savings  Bank  of  Baltimore,  except  with  regard 
to  the  surplus  in  their  hands,  unless  the  fact  that  Samuel  Jones 
was  a  director  of  the  institution  at  the  time  of  the  loan  to  him, 
renders  them  liable. 

The  second  proviso  to  the  second  section  of  the  act  of  1818, 
ch;  93,  (the  charter,)  declares  among  other  things,  the  corpora- 
tion shall  not  be  authorized  to  loan  any  part  of  the  funds  de- 
posited to  any  director  of  said  corporation. 

The  loan  in  this  case  was  to  the  firm  of  Talbot  Jones  &  Co., 
of  which,  as  it  appears  by  the  evidence,  Samuel  Jones,  the  di- 
rector, was  the  only  member ;  and  it  is  insisted  that,  as  the 
charter  prohibits  loans  to  directors,  the  contract  was  void,  and 
the  bank  acquired  and  could  exert  no  title  to  the  stock  pledged 
as  security  for  the  repayment  of  the  money  loaned. 

If  the  contract  of  loan  between  the  bank  and  Jones  were  now 
open  and  unexecuted,  and  an  attempt  were  made  to  enforce  its 
performance,  it  appears  to  me  the  case  of  The  Pennsylvania,  fyc. 
Steam  Navigation  Co.  vs.  Dandridge,  8  G.  4"  J-j  284,  would 
be  conclusive  upon  the  question.  The  doctrines  announced  by 
the  court  at  pages  318,  319  and  320,  render  it  too  clear  for 
controversy,  that  even  the  corporation  itself,  may  avail  itself  of 
the  want  of  authority  to  make  the  contract  sought  to  be  enforc- 
ed against  it,  though  it  has  received  and  enjoyed  the  consider- 
ation upon  which  it  was  made. 

If,  then,  a  suit  had  been  brought  by  the  bank  against  Jones, 
or  by  Jones  against  the  bank,  upon  this  contract,  it  would,  in 
my  judgment,  have  been  competent  to  either  of  the  defendants, 
under  such  circumstances,  to  deny  the  validity  of  the  contract, 
as  forbidden  by  the  charter. 
35* 


414  HIGH  COURT  OF  CHANCERY. 

But  this  is  not  a  suit  upon  the  contract  by  either  of  the  par-  . 
ties  thereto,  against  the  other.  The  contract  between  the  par- 
ties has  been  consummated  and  closed  by  a  sale  of  the  stock 
held  by  the  bank  and  the  re-payment  of  the  money  loaned. 
There  has  been  a  satisfaction  and  extinguishment  of  that  con- 
tract by  payment,  four  months  before  this  bill  was  filed  by  a 
stranger  to  that  contract ;  and  the  question  is,  whether  it  is 
competent  to  this  stranger,  now  that  the  money  has  been  paid 
and  the  contract  performed,  to  open  it,  and,  upon  the  ground 
that  it  was  interdicted  by  the  charter,  take  away  the  money 
from  the  bank  ? 

I  cannot  think  so.  Even  in  the  case  which  has  been  refer- 
red to,  of  The  Steam  Navigation  Co.  vs.  Dandridge,  which  was 
a  suit  between  the  parties  to  the  contract,  I  am  persuaded,  that 
if  either  of  them,  after  the  performance  of  the  contract,  had  in- 
stituted an  action  against  the  other,  either  to  recover  back  the 
money  paid,  or  for  any  other  purpose,  and  had  placed  its  right 
to  recover  upon  the  ground  of  the  invalidity  of  the  contract,  the 
answer  would  have  been — you  come  too  late  with  your  com- 
plaint, the  contract  has  been  performed  and  is  extinguished, 
and  there  is  an  end  of  it. 

I  am,  therefore,  of  opinion,  that  there  can  be  no  decree 
against  the  bank,  except  for  the  surplus  which  it  holds  for  the 
party  legally  entitled  thereto. 

The  right  of  the  complainants  to  a  decree  against  the  city  of 
Baltimore  will  now  be  examined. 

The  answer  of  the  city  denies  all  knowledge  in  fact  of  the  de- 
cree referred  to  in  the  bill,  or  that  the  said  stock  was  set  apart 
and  directed  thereby  to  be  held  by  Samuel  Jones  and  Andrew 
D.  Jones,  as  trustees,  under  the  will  of  Talbot  Jones,  for  the 
use  of  Mrs.  Albert ;  or  that  the  transfer  of  said  stock  by  the 
trustees,  to  the  bank,  was  made  with  the  knowledge  of  the 
officers  of  the  corporation,  for  the  use  and  benefit  of  Samuel 
Jones,  or  Andrew  D.  Jones,  or  in  any  manner  misapplied  from 
the  purposes  for  which  it  was  held  in  trust. 

And  the  answer  likewise  denies  that  the  officers  of  the  city 
corporation  knew  for  whom  the  said  Samuel  Jones  and  An- 


ALBERT  VS.  SAVINGS  BANK  OF  BALTIMORE.     415 

drew  D.  Jones  did  hold  said  stock,  and  there  is  no  evidence 
bringing  home  to  the  many  knowledge,  in  fact,  of  any  of  these 
particulars. 

The  question  then  is — are  there  in  the  facts  and  circum- 
stances of  this  case  sufficient  grounds  to  charge  the  city  of 
Baltimore  with  constructive  notice  of  the  violation  of  his  duty 
as  trustee,  by  Samuel  Jones  ?  Did  the  city  know  enough  to 
put  it  on  the  inquiry  and  to  make  it  responsible  for  neglecting 
to  do  so,  in  the  same  manner  as  if  it  knew,  in  fact,  of  the  exist- 
ence, character  and  nature  of  the  trust ;  and  that  the  trustees, 
or  one  of  them,  meant  to  misapply  the  trust  fund  when  the 
transfer  was  made  ?  If  the  city  is  liable  at  all,  it  is  upon  the 
ground  of  negligence,  in  not  instituting  the  proper  investiga- 
tion, when  it  was  in  possession  of  the  knowledge  of  circum- 
stances sufficient  to  awaken  its  suspicions  that  Jones  was  about 
to  commit  a  breach  of  trust  by  a  misapplication  of  the  trust 
property. 

In  this  case,  as  has  been  stated,  the  stock  stood  upon  the 
books  of  the  city,  in  the  names  of  Samuel  Jones  and  Andrew 
D.  Jones,  trustees  ;  but  for  whom  they  were  trustees,  and  what 
was  the  nature  and  character  of  the  trust,  did  not  appear.  In 
this  respect,  it  differs  altogether  from  the  case  of  Wayman  and 
Stockett  vs.  The  Bank,  et  a/.,  in  5  Gill;  for,  in  the  latter  case, 
the  entry  on  the  transfer  book  of  the  bank,  displayed  the  ori- 
gin, nature  and  character  of  the  trust,  and  who  were  the  bene- 
ficiaries, and  the  Court  of  Appeals  say,  that  "the  bank  by  this 
transfer  had  notice  of  the  trusts  with  which  the  stock  was 
clothed,  and  that  the  complainants  were  the  legal  proprietors 
of  the  stock;  and  its  officers  being  the  trustees  of  the  stock- 
holders, could  not,  without  making  the  bank  responsible,  by 
any  negligence  or  mistake,  allow  the  title  to  pass  to  the  stock 
by  a  transfer,  by  any  other  persons  than  the  trustees,  without 
involving  the  bank  in  responsibility."  The  power  of  the  trus- 
tees, holding  the  legal  title,  to  transfer  the  stock,  thus  standing 
in  their  names,  was  affirmed  by  the  court,  who  maintained 
them  to  be  the  only  persons  authorized  to  make  the  transfer, 
and  the  bank  was  held  liable,  because  it  permitted  the  transfer 


416  HIGH  COURT  OF  CHANCERY. 

to  be  made  by  others.  It  is  believed,  however,  that  even  if  the 
trustees  had  themselves  offered  to  transfer,  under  circumstances 
calculated  to  excite  suspicion,  that  they  were  about  to  abuse 
their  trust,  the  bank  would  have  been  bound  to  institute  the 
necessary  inquiry,  and  if  it  omitted  to  do  so,  and  loss  resulted, 
the  loss  would  be  thrown  upon  it. 

Such  was  the  decision  of  the  Circuit  Court,  and  such  is  be- 
lieved to  be  the  law.  There  are,  however,  circumstances  in 
the  case  referred  to  in  the  Circuit  Court,  which  clearly  distin- 
guish it  from  this. 

In  that  case,  long  after  the  period  allowed  by  the  law  in  this 
state  for  the  settlement  of  the  estates  of  deceased  persons,  one 
of  the  executors,  his  co-executor  not  concurring,  transferred 
the  stock  to  another  bank  as  security  for  the  loan  obtained  by 
him.  This  loan  being  repaid,  the  bank,  from  whom  the  execu- 
tor borrowed  the  money,  transferred  the  stock  back  to  him,  by 
the  name  of  the  commercial  firm  under  which  he  was  trading, 
by  which  name  he  subsequently  transferred  the  same  stock  to 
himself  and  his  co-executor,  as  such ;  and  then,  shortly  after- 
wards, the  same  party  signing  his  name  as  acting  executor, 
again  transferred  the  stock  to  the  same  bank  as  security  for 
other  sums  borrowed  by  him  for  his  own  use,  and  these  latter 
loans  not  being  paid  by  him,  the  stock  was  sold,  and  hence  the 
loss.  These  various  acts,  the  Chief  Justice  said,  all  appearing 
upon  the  books  of  the  bank  permitting  the  transfer,  the  purpose 
for  which  the  last  transfer  was  made,  could  not  be  doubted  by 
the  officers,  familiar  as  they  were  with  the  usage  of  loaning 
money  upon  the  hypothecation  of  stock;  and  in  truth,  as  stated 
by  the  court,  the  bank,  in  its  answer,  impliedly  admits  such 
knowledge  by  saying,  "if  the  president  had  known  that  the 
transfer  was  about  to  be  made,  he  would  have  prevented  it." 

In  this  case,  there  was  but  a  single  transfer,  and  that  was 
made  by  both  the  parties  in  whose  names  the  stock  stood,  and 
there  is  nothing  in  the  answer  of  the  city,  or  to  be  found  in  the 
evidence,  upon  which  any  presumptions  can  be  raised,  that  the 
officers  of  the  city  knew,  or  suspected,  that  the  parties  making 
the  transfer  were  abusing  their  trust. 


ALBERT  VS.  SAVINGS  BANK  OF  BALTIMORE.     417 

In  this  case  in  the  Circuit  Court  the  stock  stood  in  the  name 
of  the  deceased,  Talbot  Jones,  and  was  transferred  by  Samuel 
Jones  as  executor,  from  which  the  bank  must  have  known  that 
there  was  a  will ;  of  which,  as  the  Chief  Justice  says,  in  Ma- 
ryland, the  bank  was  bonnd  to  take  notice.  In  this  case,  though 
the  stock  may  at  one  time  have  stood  in  the  name  of  the  de- 
ceased, yet,  from  the  year  1841,  it  had  stood  in  the  name  of  the 
trustees,  and  as  these  trusts  may  be,  and  often  are,  created  by 
agreement,  of  which  no  record  need  be  made,  the  same  facility 
of  ascertaining  the  true  ownership  of  the  property  did  not  exist, 
as  in  the  case  decided  in  the  Circuit  Court,  where  the  bank  was 
pointed  to  the  will  of  the  deceased,  to  be  found  upon  the  pub- 
lic records  of  the  state. 

In  the  case  now  under  consideration,  the  officers  of  the  city 
of  Baltimore  saw  by  the  books  of  the  corporation  that  this 
stock  had  stood  in  the  names  of  these  parties  as  trustees,  from 
1841  to  1845  ;  and  although  in  1841  it  had  been  transferred 
by  themselves  as  executors  to  themselves  as  trustees,  and 
although  the  transfer  made  by  them  as  executors  in  1841,  was 
evidence  that  Talbot  Jones  left  a  will,  yet  as  the  stock  continued 
to  stand  in  their  names  as  trustees  from  that  time  down  to  1845, 
the  officers  of  the  city  might  well  assume  that  the-  will  of  the 
deceased  had  ceased  to  operate  upon  it. 

There  is  another  ^circumstance  in  this  case,  which,  as  it  ap- 
pears to  me,  draws  a  marked  line  of  distinction  between  it  and 
the  case  decided  by  the  Circuit  Court. 

The  dividends  upon  this  stock,  from  January,  1842,  to  Octo- 
ber, 1845,  inclusive,  were  paid  to  the  husband  of  Mrs.  Albert, 
under  an  authority  to  her,  signed  by  the  executors,  and  from 
October,  1845,  to  January,  1847,  during  which  period  it  stood 
in  the  name  of  the  Savings  Bank,  they  were  paid  to  its  presi- 
dent, Mr.  Gushing,  and  there  is  no  evidence  whatever,  that 
during  that  time,  or  until  the  filing  of  this  bill,  in  May,  1847, 
any  inquiry  or  complaint  was  made  by  the  complainants  to  the 
city,  on  account  of  this  diversion  of  their  accustomed  receipts. 

The  bill  alleges  that  in  May,  1846,  one  of  the  complainants 
informed  Mr.  Gushing  that  this  stock  was  held  by  the  trustees, 


418  HIGH   COURT  OF  CHANCERY. 

in  trust  for  the  female  complainant ;  but  this  allegation  is  ex- 
pressly denied  in  the  answer  of  Mr.  Gushing,  and  there  is  no 
evidence  in  support  of  the  averment.  The  answer  admits  that 
there  was  a  conversation  between  William  J.  Albert  and  the  re- 
spondent, in  the  spring  of  1846,  in  reference  to  a  parcel  of  the 
stock  of  the  Water  Company,  held  by  the  bank  as  security  for 
money  loaned  to  the  firm  of  Talbot  Jones  &  Co.,  in  which  he, 
Albert,  intimated  that  the  stock  was  his,  or  that  he  had  some 
interest  in  it,  but  the  answer  wholly  denies  that  the  conversa- 
tion related  to  the  stock  now  in  controversy. 

When  this  conversation  was  held,  two  dividends  had  accrued 
on  this  stock,  those  for  January  and  April,  1846.  They  had 
accrued  and  been  received  by  the  Savings  Bank,  since  its  trans- 
fer to  them  in  October,  1845,  and  it  is  difficult  to  believe  that 
Mr.  Albert,  who  had  been  accustomed  to  receive  the  dividends 
himself,  did  not  know  at  that  time,  of  the  transfer  of  the  stock 
to  the  bank  :  and  yet  he  said  nothing  about  it,  though  setting 
up  a  claim  to  another  parcel  of  stock  which  had  been  placed 
with  the  bank  by  the  same  parties. 

Samuel  Jones,  in  his  answer,  says,  that  he  transferred  this 
stock  to  the  Savings  Bank  in  1845,  with  the  full  knowledge 
and  consent  of  said  Albert,  and  the  presumption  is,  I  think, 
very  strong  that  this  is  the  case ;  as,  otherwise,  it  can  scarcely 
be  doubted,  inquiries  would  have  been  instituted  by  him,  and 
the  stock  traced  to  the  bank;  and  if  Albert,  the  husband,  knew 
it,  and  consented  to  it,  it  is  certainly  not  pressing  presumption 
to  an  unwarrantable  extent  to  presume  that  Mrs.  Albert  also 
knew  and  consented  to  it. 

It  is  not  at  all  reasonable  to  suppose,  that  the  loss  of  the  in- 
come and  dividends  upon  this  stock  would  not  have  excited 
inquiry;  and  inquiry  of  the  officers  of  the  city  would  have  led 
directly  to  a  knowledge  of  the  party  to  whom  the  stock  had 
been  transferred.  It  may  be,  that  if  the  complainants  had  (in 
the  latter  part  of  1845  or  in  the  spring  of  1846,  when,  I  think, 
they  must  have  known  of  the  transfer  of  this  stock)  adopted 
the  proper  steps,  or  given  the  necessary  information  to  the  city 
and  bank,  that  no  loss  would  have  occurred. 


ALBERT  VS.  SAVINGS  BANK  OF  BALTIMORE.  419 

Samuel  Jones  did  not  stop  payment  until  September,  1846, 
or  petition  for  the  benefit  of  the  insolvent  laws  until  January, 
1847 ;  and  it  may  very  well  be  said,  if  the  officers  of  the  bank 
and  the  city  had  been  put  on  their  guard  in  due  season,  they 
might  have  secured  themselves  from  loss,  if,  under  the  circum- 
stances of  the  case,  they  would  have  been  liable. 

This  was  not  done,  and  it  was  not  until  after  the  failure  of 
Jones  that  this  bill  was  filed,  which,  for  the  first  time,  brought 
to  the  knowledge  of  the  defendants  the  facts  upon  which  relief 
against  them  is  asked. 

I  do  not  think  that  the  entry  upon  the  books  of  the  corpora- 
tion, that  this  stock  stood  in  the  names  of  Samuel  Jones  and 
Andrew  D.  Jones,  trustees,  was  standing  by  itself,  sufficient  to 
put  the  city  upon  the  inquiry,  and  to  make  it  responsible  upon 
the  ground  of  negligence ;  and  I  am  not  prepared  to  say  that 
the  fact  that  another  received  the  dividends  upon  the  order  of 
the  trustees,  would  have  that  effect.  But,  be  that  as  it  may, 
there  has,  I  think,  been  negligence,  if  not  acquiescence,  on  the 
part  of  the  cestui  que  trusts  quite  equal  to  that  imputed  to  the 
city,  and,  therefore,  I  do  not  think  they  are  entitled  to  relief. 

The  bill  will  be  dismissed  as  against  the  city  and  Gushing, 
and  as  against  the  bank  there  will  be  a  decree  for  the  surplus 
now  held  by  it. 

[This  decree  was  appealed  from,  but  no  decision  has  yet 
been  had  upon  the  appeal.] 


420  HIGH  COURT  OF  CHANCERY. 


GOODBURN  AND  WIFE  } 

vs.  S-     JULY  TERM,  1849. 

STEVENS   ET  AL.        J 


[PARTNERSHIP — ELECTION  op  INTEREST  OR  PROFITS — DOWER — AGE  OF  WIDOW — 

ARREARS    OF    DOWER PAYMENT    OF    MORTGAGE — TRUSTEE5*    COMMISSIONS.] 


WHERE  one  of  several  partners  dies,  if  the  surviving  partners  continue  the 
trade  or  business,  it  is  at  their  own  risk  ;  and  they  will  be  liable,  at  the  op- 
tion of  the  representatives  of  the  deceased  partners,  to  account  for  the  profits 
made  thereby,  or  to  be  charged  with  interest  on  the  deceased  partner's 
share  of  the  surplus,  besides  bearing  all  losses. 

Where  the  administratrix  of  a  deceased  partner  filed  a  bill  against  the  surviv- 
ing partners,  alleging  that  the  business  of  the  partnership  had  been  carried 
on  under  the  old  name,  and  large  profits  made,  and  praying  that  her  intes- 
tate's share  of  such  profits  might  be  paid  over  to  her,  as  administratrix, 
HELD — 

That  by  such  a  proceeding,  she  had  elected  to  claim  profits,  and  not  interest  •, 
and,  that  a  party  cannot  claim  profits  for  one  period  and  interest  for  another. 

The  real  estate  of  a  partnership,  though  regarded  in  a  court  of  equity  as  per- 
sonal estate  for  all  partnership  purposes  ;  yet,  in  the  absence  of  an  express 
or  implied  agreement,  indicating  an  intention  to  convert  it  into  personal  es- 
tate, will,  when  the  claims  against  the  partnership  have  been  satisfied  and  the 
partnership  accounts  adjusted,  be  treated  in  a  court  of  equity,  as  at  law,  as 
real  estate,  and  be  subject  to  the  dower  of  the  widow  of  a  deceased  partner. 

It  having  been  decided  that  a  widow  was  entitled  to  an  allowance  out  of  the 
proceeds  of  sales  of  partnership  lands,  in  lieu  of  dower;  and  the  husband 
having  died  in  1825,  and  the  sale  not  having  been  made  until  1845,  it  was 
HELD — That  the  age  of  the  widow  at  the  death  of  her  husband  should  be 
taken,  in  fixing  her  allowance  under  the  chancery  rule. 

The  right  of  a  widow  to  dower  in  partnership  property,  is  suspended  until  the 
purposes  of  the  partnership  are  accomplished,  by  paying  all  claims  against 
it,  and  adjusting  the  accounts.  She  cannot,  therefore,  claim  rents  and 
profits  from  the  death  of  her  husband. 

A  mortgage  debt  must  be  paid  out  of  the  personal  estate  of  the  mortgagor  ; 
and,  if  that  is  not  adequate,  then  the  balance  should  be  paid  out  of  that  por- 
tion of  the  real  estate  contained  in  the  mortgage. 

When  a  court  of  equity  has  control  of  both  personal  and  real  estate,  it  will,  in 
order  to  prevent  circuity  and  save  expense  and  delay,  apply  them  in  the  or- 
der in  which,  as  between  the  heir  and  executor,  they  are  liable. 

When  several  sales  are  made  at  different  times,  the  commissions  of  the  trustee 
should  be  calculated  upon  each  sale  separately,  and  the  sales  are  not  to  be 
treated  at  if  made  at  one  time. 


GOODBURN  VS.  STEVENS.  421 

[On  the  15th  of  January,  1830,  Ann  B.  W.  Hayes,  who  has 
since  intermarried  with  Joseph  Goodburn,  filed  her  bill  in  this 
court,  stating,  that  on  the  [9th  of  December,  1824,  she  inter- 
married with  Samuel  Hayes,  who,  on  the  20th  of  May,  1825, 
died  intestate,  without  issue,  possessed  of  47-100ths  of  a 
manufacturing  establishment  in  Cecil  county,  called  Elk  Forge, 
consisting  of  several  thousand  acres  of  land,  with  the  various 
buildings  thereon,  on  Big  Elk  Creek,  and  land  and  valuable 
personal  property  on  Little  Elk  Creek,  and  in  the  states  of  Dela- 
ware and  Virginia  ;  that  the  business  of  the  firm  in  which  the 
property,  both  real  and  personal,  was  employed,  had  been 
carried  on  for  many  years  in  the  name  of  Samuel  Hayes  &  Co.; 
said  firm  at  the  death  of  Hayes,  consisting  of  himself,  Samuel 
Stevens  and  wife,  Maria  Rudolph,  Thomas  Hayes,  Elizabeth 
B.  Hayes,  Robert  M.  Hayes,  and  Geo.  Hayes  ;  of  whom,  all 
except  Samuel  Stevens  and  wife,  were  his  heirs  and  repre- 
sentatives, as  were  also  the  complainant  and  Henry  M.  Hayes, 
the  latter  of  whom,  sold  his  interest  in  1827,  to  the  other  sur- 
viving partners,  except  Stevens  and  wife  ;  that  Samuel  Hayes, 
acquired  25-100ths  of  his  interest,  by  purchase  from  William 
Scale,  to  whom  he  mortgaged  the  same  to  secure  the  payment 
of  the  purchase  money,  of  which  there  was  due  at  his  death, 
$5000  ;  that  his  other  debts  amounted  to  about  $700,  and  his 
property,  independent  of  his  partnership  interest,  was  only 
worth  about  $500 ;  that  at  his  death,  the  debts  due  the  firm 
exceeded  those  owed  by  it,  and,  that  there  were  large  profits 
for  division.  That  failing  in  her  repeated  efforts  to  obtain  an 
allowance  of  her  interest,  the  complainant,  on  the  26th  Septem- 
ber, 1825,  took  out  letters  of  administration  on  her  deceased 
husband's  estate,  since  which  time,  she  had  frequently  tried, 
without  success,  to  obtain  a  settlement  with  the  surviving 
partners  ;  that  the  latter  continued  to  conduct  the  business  of 
the  establishment  under  the  same  name,  with  James  Jackson, 
as  manager ;  that  they  had  made  extensive  improvements, 
and,  as  complainant  believed,  with  the  profits  of  the  partner- 
ship ;  and,  that  they  had  divided  amongst  themselves  annually, 
a  sum  exceeding  $3000,  whilst  complainant  had  not  received 
VOL.  i — 36 


422  HIGH  COURT  OF  CHANCERY. 

$100,  and  Scale  had  only  been  paid  interest  on  the  residue  of 
his  debt.     The  bill  concluded  with  a  prayer,  "that  the  said 
surviving  partners  may  be  restrained  from  using  the  said  part- 
nership name  of  Samuel  Hayes   &  Co.;   that  they   may  be  en- 
joined from  using  the  share  or  proportion  of  the  personal  prop- 
erty  which  belonged    to  the    said  Samuel  Hayes  ;  that  a  re- 
ceiver may  be  appointed  to  receive  the  profits  of  said  concern, 
until  this   matter  shall  be   fully   considered   in  this  honorable 
court ;  that  the  said  surviving  partners  may  be  compelled    to 
render  a  full,  true,  and  perfect  account  of  all  the  transactions  of 
said   concern  ;  that  they  may  be    compelled  to   pay   off,  and 
satisfy  the  debt  due  the  said  William  Scale  from  that   portion 
of  said  concern  which  was  originally  bought  of  him  ;  that  they 
may  be  required  to  pay  over  to  your  oratrix   as  administratrix 
of  the  said  Samuel  Hayes,  his  share  or  proportion  of  the   per- 
sonal property  of  said  concern,  as  well  as  his  share  or  propor- 
tion of  the  profits  which  have  accrued  thereon  since  his  death  ; 
that  your  oratrix  may  have  a  reasonable   and  just   allowance 
made  for  her  dower  in  her  said  husband's  interest  in  said  lands 
and  premises;  and,  that  the  said   surviving  partners,  and  the 
said  James  Jackson,  their  manager,  may  answer  this  bill,"  &c. 
On  the  18th  of  the  same  month,  an  injunction   was  granted 
as    prayed,    after   which,    the    defendants    filed  their  answers. 
The  answer  of  Samuel  Stevens  and    wife,    with    which    the 
others    mainly    corresponded,    admitted    the    interest    of  said 
Hayes,  and  its  amount,  but  stated,  that  the  purchase  money  of 
the  one-fourth  purchased   of  Scale,  had  not  been  paid,  and 
submitted  that  the  same  ought  to  be  paid   out  of  the  personal 
estate  ;  they   admitted  the  marriage  of  the   complainant,  the 
death  of  her  husband,  intestate  and  without  issue,  the  grant  of 
letters  of  administration  to  his  wife,  the  names  of  his  heirs,  the 
use  of  the  partnership  name,  the  names  of  the  partners,  and  the 
conveyance  by  Henry  M.   Hayes.     They  stated,  that  Hayes' 
interest  at  his  death,  went  to  his  heirs,  who  consented   to    a 
continuance  of  the  partnership  ;  they  refused  to  admit  the  com- 
plainants' right  to  control  the  affairs  of  the  firm  after  the  death 
of  her  husband  ;  denied  their  opposition  to  a  settlement  with 


GOODBURN  VS.  STEVENS.  423 

her,  stating,  that  they  had  been,  on  the  contrary,  anxious  for  it; 
and  admitted  the  improvements  charged  in  the  bill,  but  pre- 
sumed complainant  could  not  object  to  them,  as  the  estate  did 
not  descend  to  her.  The  defendants  further  stated,  that  the 
personal  property  belonging  to  the  partnership  at  the  death  of 
Hayes,  was  used  and  consumed  in  the  course  of  business  ;  they 
denied  that  there  would  be  any  balance  due  to  Hayes  on  a 
settlement,  (as  the  expenses  of  the  concern,  which  were  great, 
were  by  consent  paid  out  of  the  profits  to  save  the  realty,)  or 
that  there  had  been  any  division  of  the  profits  since  his  death. 
The  defendant  also  stated,  that  Hayes  had  been  the  active 
manager  of  the  firm,  for  which  he  received  a  salary,  that  he  had 
drawn  his  proportion  of  the  profits,  and  was  at  his  death  in- 
debted to  the  firm  ;  and  objected  to  the  appointment  of  a  re- 
ceiver. 

At  July  term,  1830,  exceptions  to  the  answers  were  filed  by 
the  complainant,  and  a  motion  to  dissolve  the  injunction  was 
made  by  the  defendants.  On  the  2d  July,  these  exceptions 
were  overruled,  but  the  injunction  was  dissolved,  so  far  as  it 
prevented  the  defendants  from  using  the  deceased's  portion  of 
the  partnership  property. 

In  August,  1841,  Mrs.  Hayes,  having  in  the  meanwhile  in- 
termarried with  Joseph  Goodburn,  proceedings  were  instituted 
by  which  he  was  made  a  complainant  in  the  cause,  and  on  the 
31st  of  the  same  month,  a  decree  was  passed,  by  consent,  in  a 
creditor's  suit  instituted  by  Sewall  and  others  against  said  S. 
Hayes  and  others,  for  the  sale  of  the  partnership  property  men- 
tioned in  these  proceedings,  and  appointing  a  trustee  for  that 
purpose. 

At  different  times  previous  to  July  term,  1844,  this  cause 
was,  by  order  of  the  Chancellor,  consolidated  with  two  other 
cases  affecting  the  partnership  property,  one  of  which  was  the 
said  case  of  Sewall  et  al.  vs.  Hayes,  et  al.,  whereby  the 
assignees  of  William  Scale's  mortgage  and  the  creditors  of  the 
partnership  were  made  parties  hereto ;  and  at  the  said  term 
the  Chancellor  passed  a  decree  in  all  three  of  the  consolidated 
cases  for  a  sale  of  all  the  property  for  the  benefit  of  all  parties, 


424  HIGH  COURT  OF  CHANCERY. 

for  a  settlement,  and  reserving  the  equities  of  the  parties  as  to 
the  distribution  of  the  net  proceeds  of  sale.  On  the  21st  Octo- 
ber, 1845,  after  much  proof  had  been  taken,  the  special  auditor 
filed  his  report,  in  which  he  assumed,  that  the  partnership  was 
insolvent  in  1825,  at  the  death  of  Hayes,  and  was  closed  at  that 
period,  and  not  afterwards  continued  ;  and  that  the  complain- 
ant Mrs.  Goodburn  was  entitled  from  that  time  to  the  8th  De- 
cember, 1841,  to  interest  on  one-third  of  Samuel  Hayes'  inter- 
est in  the  property,  estimating  its  value  by  testimony  taken  un- 
der the  first  commission.  Various  exceptions  were  taken  to 
this  report,  both  by  the  complainants  and  the  defendants,  and 
on  the  19th  January,  1846,  the  Chancellor  (BLAND)  passed  the 
following  order : 

"Ordered,  that  this  case  be,  and  the  same  is  hereby  again 
referred  to  the  said  special  auditor,  with  directions  to  restate 
the  accounts  from  the  pleadings  arid  proofs  now  in  the  case, 
and  from  such  other  proof  as  may  be  laid  before  him.  It  must 
be  recollected,  that  the  persons  of  whom  the  partnership  in  the 
proceedings  mentioned,  has  been  constituted,  are  to  be  consid- 
ered as  having  been  endowed  with  two  separate  legal  capaci- 
ties ;  first,  with  that  of  an  associated  conventional  capacity  as 
a  partnership  ;  and,  secondly,  with  that  of  a  natural  capacity 
belonging  to  them  as  individuals.  And  that  as  the  social  arti- 
ficial capacity  of  a  partnership  is  entirely  distinct  from  the  nat- 
ural capacity  of  each  individual ;  and  as  each  legal  capacity 
stands  in  all  cases  as  a  distinct  person,  these  two  capacities  of 
these  parties  must  be  carefully  observed,  and  treated  through- 
out this  case,  as  distinct  persons  in  respect  to  all  property  be- 
longing to  the  partnership,  and  so  long  as  such  property  may 
be  so  held,  or  be  continued  under  the  control  of  this  court  in 
this  suit.  The  accounts  are  to  commence  with  the  original  for- 
mation of  the  partnership,  and  to  be  brought  down  through  all 
its  mutations,  by  any  changes  of  the  persons  by  whom  it  was 
constituted,  unto  its  final  dissolution  by  the  decree  of  the  thirty- 
first  day  of  August,  in  the  year  eighteen-hundred  and  forty-one. 
The  partnership  might  have  been  treated  as  having  been  termi- 
nated by  the  death  of  Samuel  Hayes,  deceased  ;  but  his  repre- 


GOODBURN  VS.  STEVENS.  425 

sentatives,  so  far  frora  asking  for  its  then  dissolution,  have,  some 
of  them,  insisted  on  its  continuance ;  and  his  widow  and  ad- 
ministratrix has  only  called  for  a  settlement  on  the  apparent 
presumption  of  its  continuance  ;  the  partnership  must,  therefore, 
be  taken  to  have  been  continued  on  its  then  existing  terms,  by 
the  express  or  implied  consent  and  contract  of  all  concerned. 
All  the  property  belonging  to  the  partnership,  of  whatsoever 
nature  or  kind,  must  be  considered  as  its  estate ;  and  being  so 
held  by  those  individuals  in  their  associated  capacity  as  a  part- 
nership, must  be  treated  as  liable,  exclusively,  and  in  the  first 
place,  to  none  other  than  claims  against  that  artificial  capacity 
or  person.  And,  consequently,  whether  such  property  of 
the  partnership  be  considered  as  real  or  personal  estate, 
none  of  it  can  be  held  liable  to  the  claim  of  a  creditor,  dowress, 
heir,  devisee,  widow,  legatee,  or  next  of  kin,  of  any  living  or 
deceased  partner,  in  his  natural  capacity,  until  all  claims  against 
the  partnership  have  been  satisfied,  and  the  whole  concern  has 
been  so  completely  wound  up  and  adjusted,  as  to  enable  each 
member  of  the  partnership  to  take  his  due  share  of  the  surplus 
or  residuum  in  his  individual  or  natural  capacity.  And  as  a 
widow  of  a  deceased  partner  can  have  dower  assigned  to  her 
out  of  none  other  than  such  real  estate  of  inheritance  of  which 
her  husband  had  been,  in  his  natural  capacity,  sole  seized 'dur- 
ing the  coverture ;  and  as  it  does  not  appear  that  Samuel  Hayes, 
deceased,  was  at  any  time  so  seized  of  any  real  estate  held  by 
the  partnership,  as  in  the  proceedings  mentioned,  his  widow 
can  have  no  right  to  dower,  as  claimed  by  her  bill  of  complaint. 
And  recollecting,  moreover,  that  as  no  one  of  the  partners,  or 
his  representatives  can  be  entitled  to  anything  more  than  his 
due  share  of  so  much  of  the  partnership  property  as  remains 
after  all  its  concerns  have  been  entirely  closed,  it  is  only  that 
residuum  which  is  to  be  distributed  according  to  its  true  value  ; 
and  as  that  true  value  can  only  be  ascertained  by  an  actual  sale, 
it  has  been  deemed  necessary  in  all  cases,  to  have  it  all  sold, 
whether  consisting  of  real  or  personal  estate,  so  as  to  make  an 
accurate  distribution  of  the  net  proceeds  of  sale,  considering 
the  whole  as  personalty,  among  the  partners  according  to  the 
36* 


426  HIGH    COURT  OF    CHANCERY. 

terras  of  the  contract  of  partnership,  or  amongst  the  legal  rep- 
resentatives of  a  deceased  partner,  according  to  their  legal 
rights  and  interests. 

"And  the  parties  are  hereby  authorized  and  allowed  to  take 
testimony  in  relation  to  such  accounts,  before  any  justice  of  the 
peace,  on  giving  three  days  notice  as  usual  ;  provided,  that 
such  testimony  be  taken  and  filed  in  the  chancery  office,  in  this 
case,  on  or  before  the  tenth  day  of  April  next." 

[From  this  order  the  complainants  took  an  appeal  under  the 
act  of  1845,  chapter  367,  which  having  been  argued  before  the 
Court  of  Appeals,  MARTIN  J.  at  June  Term,  1847,  delivered 
the  following  as  the  opinion  of  the  Court :] 

This  is  an  appeal  from  the  order  of  the  Chancellor,  of  the 
19th  of  January,  1846,  instructing  the  Auditor  as  to  the  prin- 
ciples upon  which  he  was  to  state  the  account  between  the 
parties. 

By  this  order  the  Chancellor  has  determined  : 

First,  That  the  partnership  in  which  Samuel  Hayes  was  con- 
cerned, was  to  be  treated  as  subsisting  until  the  31st  of  Au- 
gust, 1841,  when  it  was  dissolved  by  the  decree  passed  in  the 
case  of  the  creditor's  bill ;  and  that  the  accounts  of  the  part- 
nership were  to  be  brought  down  to  that  period. 

Secondly,  That  the  entire  estate  of  the  partnership,  compris- 
ing both  its  real  and  personal  property,  was  to  be  regarded  as 
a  fund  applicable  exclusively,  and  in  the  first  place  to  the  pay- 
ment of  the  debts  of  the  partnership  in  preference  to  all  other 
claimants. 

And  thirdly,  that  the  real  estate  held  and  owned  by  the  part- 
ners, and  used  by  them  in  the  business  of  the  partnership,  was 
to  be  considered  as  converted  for  all  purposes  into  personalty — 
as  possessing,  in  all  respects,  the  qualities  and  incidents  of 
personal  property,  and  therefore  not  subject  to  the  claim  of 
dower. 

The  appeal  has  been  prosecuted  at  this  stage  of  the  cause, 
in  pursuance  of  the  act  of  Assembly  of  1845,  ch.  367,  enlarg- 


GOODBURN  VS.  STEVENS.  427 

ing  the  rights  of  appeal  in  cases  where  decrees  or  orders  to 
account  have  been  passed  by  the  chancery  courts;  and  a  pre- 
liminary point  was  raised  by  the  counsel,  with  respect  to  the 
questions  which  were  properly  open  for  adjudication  on  this 
appeal. 

The  first  section  of  the  act  provides — "That  an  appeal  may 
be  taken  from  any  decree  or  order  of  the  court  of  chancery,  or 
county  court  sitting  as  a  court  of  equity,  determining  a  ques- 
tion of  right  between  the  parties,  and  directing  an  account  to 
be  stated  on  the  principle  of  each  determination  :"  and  it  is 
clear,  that  in  our  examination  of  the  order,  we  can  only  inquire 
into  the  correctness  of  the  principles  announced  by  the  Chan- 
cellor as  the  basis  of  the  Auditor's  report.  The  right  of  appeal 
from  these  interlocutory  orders  has  been  conferred  only  where  a 
question  of  right  has  been  determined  between  the  parties,  and 
an  account  directed  to  be  stated  on  the  principles  of  such  de- 
termination— and  it  must  be  evident  that  we  could  not  consider 
any  other  questions  than  those  determined  by  the  court  below 
for  the  government  of  the  Auditor,  without  exercising  original 
jurisdiction.  A  power  incompatible  with  the  character  and  at- 
tributes of  this  tribunal,  and  certainly  not  intended  to  be  com- 
municated by  the  statute  under  which  this  appeal  has  been 
taken. 

With  respect  then  to  the  first  question  decided  by  the  Chan- 
cellor, we  think  he  erred  in  regarding  this  partnership  as  sub- 
sisting until  the  31st  of  August,  1841. 

The  doctrine  upon  this  subject  has  been  stated  with  clearness 
and  accuracy  by  Judge  Story  in  his  late  work  on  partnership. 
He  says, — "although  the  partnership  be  fixed  for  a  particular 
term  or  period,  yet  it  is  always  understood  as  an  implied  con- 
dition or  reservation,  unless  the  contrary  is  expressly  stipulated, 
that  it  is  dissolved  by  the  death  of  either  of  the  partners  at  any 
time  within  the  period.  This  doctrine  is  founded  in  equi- 
table principles,  and  is  the  natural  result  of  the  peculiar  ob- 
jects of  the  contract.  Every  partnership  is  founded  in  a  delec- 
tus persona,  which  implies  confidence  and  knowledge  of  the 
character,  skill,  and  ability  of  the  other  associates;  and  their 


428  HIGH  COURT  OF  CHANCERY. 

personal  co-operation,  advice  and  aid  in  the  management  of 
the  business.  The  death  of  any  one  partner  necessarily  puts 
an  end  to  such  aid  and  co-operation.  If,  therefore,  the  part- 
nership were  not  put  an  end  to  by  the  death  of  any  one  of  the 
partners,  one  of  two  things  must  follow :  either  that  the  whole 
business  of  the  partnership  must  be  carried  on  by  the  surviving 
partners  exclusively,  at  the  hazard  of  the  estate  and  interests 
of  the  deceased  partners,  or  else,  that  the  personal  representa- 
tive of  the  deceased,  totoies  quoties,  who  may  be  a  stranger, 
wholly  unfit  for,  and  unacquainted  with  the  business,  must  be 
admitted  into  the  management.  The  law  will  not  force  either 
of  these  alternatives  upon  the  parties,  but  it  presumes,  in  the 
absence  of  all  contrary  stipulations,  that  by  a  tacit  consent, 
death  is  to  dissolve  the  partnership,  because  it  dissolves  the 
power  of  a  personal  choice,  confidence,  and  management  of  the 
concern." 

In  Crawshay  vs.  Mauley  1  Swans,  508,  Lord  Eldon  said, 
"The  doctrine  that  death  ends  a  partnership,  has  been  called 
unreasonable.  Much  remains  to  be  considered  before  this  ob- 
jection can  be  approved.  If  men  will  enter  into  a  partnership, 
as  into  a  marriage,  for  better  and  for  worse,  they  must  abide 
by  it;  but  if  they  enter  into  it  without  saying  how  long  it  shall 
endure,  they  are  understood  to  take  that  course  in  the  expecta- 
tion, that  circumstances  may  arise  from  which  a  dissolution  will 
be  the  only  means  of  saving  them  from  ruin  ;  and  considering 
what  persons  death  may  introduce  into  a  partnership,  there  is 
strong  reason  for  saying  that  such  should  be  its  effect.  Is  the 
surviving  partner  to  receive  into  the  partnership,  at  all  hazards, 
the  executor  or  administrator  of  the  deceased,  his  next  of  kin, 
or  possibly  a  creditor,  taking  administration  ?"  And  the  Su- 
preme Court  have  declared  in  Scholefield  vs.  Eichelberger,  7 
Pet.  594,  "that  although  the  liability  of  a  deceased  partner,  as 
well  as  his  interest  in  the  profit  of  a  concern,  may,  by  contract, 
be  extended  beyond  his  death ;  yet,  without  such  stipulation, 
death  dissolves  the  concern."  The  same  doctrine  is  announced 
in  Vullimay  vs.  Noble,  3  Mer.  614 ;  Crawford  vs.  Hamilton, 
3  Mer.  136  ;  Gratz  vs.  Bayard,  11  S.  #  Raw.,  41  ;  Dyer  vs. 


GOODBURN  VS.  STEVENS.  429 

Clark,  5  Metcalf,  575,  and  in  other  cases  to  which  it  is  unne- 
cessary to  refer.  It  must,  therefore,  be  regarded  as  an  estab- 
lished principle  resulting  from  the  nature  of  the  contract,  and 
necessary  for  the  protection  both  of  the  rights  of  the  surviving 
partners,  and  the  estate  of  the  deceased,  that  the  death  of  either 
of  the  partners  produces,  ipso facto,  a  dissolution  of  the  concern ; 
unless  there  is  inserted  in  the  contract  some  provision  imposing 
upon  the  surviving  partners,  and  the  representative  of  the  de- 
cedent, an  imperative  obligation  to  continue  it.  There  is  to  be 
found  in  this  contract  of  partnership  no  such  stipulation,  and 
we  think  that  the  death  of  Samuel  Hayes,  on  the  20th  of  May, 
1825,  is  to  be  treated  as  the  true  period  of  the  dissolution. 

The  counsel  for  the  appellee  have,  however,  contended,  that 
if  this  partnership  was  continued  from  the  death  of  Samuel 
Hayes,  to  the  31st  of  August,  1841,  with  the  express  or  implied 
consent  of  Mrs.  Hayes,  the  order  of  the  Chancellor  in  this  re- 
spect was  correct,  and  that  the  consent  of  the  widow  and  ad- 
ministratrix, to  its  continuation  is  to  be  inferred  from  her  con- 
duct, and  especially  from  the  character  of  her  bill,  in  which  she 
claims  a  right  to  participate  in  the  profits  earned  by  the  partners, 
between  the  death  of  her  husband  and  the  period  of  the  institu- 
tion of  her  suit. 

Samuel  Hayes  died  on  the  25th  of  May,  1825.  On  the  26th 
of  September,  of  the  same  year,  Mrs.  Goodburn  obtained  letters 
of  administration  upon  his  estate,  and  on  the  15th  of  January, 
1830,  she  filed  her  bill,  in  which  she  charges,  "that  the  per- 
sonal property  of  her  husband,  had  been  employed  in  the  busi- 
ness of  the  partnership,  by  the  defendants,"  and  prays,  "that 
they  may  be  compelled  to  account  for  the  profits  made  since  his 
death,  out  of  the  personal  property,  and  that  she  may  have  a 
reasonable  and  just  allowance  for  her  dower  in  the  lands."  And 
assuming  the  facts  stated  in  the  bill  to  be  true,  it  was  the  un- 
questionable right  of  the  administratrix,  at  her  election,  to  de- 
mand either  the  actual  profits  made  by  the  survivors  from  the 
use  of  her  husband's  share  of  the  prrtnership  property,  or  inter- 
est upon  the  capital  thus  employed. 

In  Story  on  Part.,  sec.  343,  it  is  stated — "That   dissolution 


430  HIGH  COURT  OF  CHANCERY. 

by  death  puts  an  end  to  the  partnership,  from  the  time  of  the 
occurrence  of  that  event.  It  completely  puts  an  end  to  the 
power  and  authority  of  the  surviving  partners,  to  carry  on  for 
the  future,  the  partnership  trade  or  business.  It  is,  therefore, 
the  duty  of  the  surviving  partners,  to  cease  altogether  from  car- 
rying on  the  trade  or  business  thereof;  and  if  they  act  other- 
wise, and  continue  the  trade  or  business,  it  is  at  their  own  risk, 
and  they  will  be  liable,  at  the  option  of  the  representatives  of 
the  deceased  partner,  to  account  for  the  profits  made  thereby, 
or  to  be  charged  with  the  interest  upon  the  deceased  partner's 
share  of  the  surplus,  besides  bearing  all  the  losses."  The  rule 
is  also  correctly  given  in  a  late  treatise  on  the  subject.  Gary ,  117. 

The  author  says,  "where  the  surviving  partners  continue  the 
business,  employing  in  it  the  share  belonging  to  the  represen- 
tative of  the  deceased  partner,  and  no  express  direction  has 
been  given  by  the  deceased,  relative  to  the  continuance  of  the 
business,  the  party  entitled  to  the  share  of  the  deceased,  is  at 
liberty  to  choose,  either  to  receive  the  legal  interest  on  the 
capital  so  employed,  or  to  take  the  profits  that  have  arisen  from 
the  use  of  such  capital  ;  and  in  order  to  enable  a  party  so  inter- 
ested to  determine  his  choice,  a  decree  will  be  passed  directing 
an  inquiry,  whether  the  account  of  interest  or  profits  will  be 
most  advantageous  ;  but  unless  under  particular  circumstances, 
the  party  having  the  choice,  cannot  elect  the  interest  for  one 
period,  and  the  profits  for  another,  but  must  elect  to  take  one 
or  the  other,  for  the  whole  period." 

In  Crawshay  against  Collins,  15  Fes.,  227,  Lord  Eldon  said, 
"If  the  surviving  partners  do  not  think  proper  to  settle  with  the 
executor  and  put  an  end  to  the  concern,  but  to  make  that  which 
is  in  equity  the  joint  property  of  the  deceased  and  them,  the 
foundation  of  increased  profit,  they  must  be  understood  to  pro- 
ceed on  the  principle  which  regulated  the  property  before  the 
death  of  their  partner." 

The  same  doctrine  is  declared  and  illustrated  in  the  cases 
of  Brown  vs.  Brown,  1  P.  W.,  140;  Hammond  vs.  Douglas,  5 
Fes.,  539;  Ex-Parte  Ruffin,  6  Fes.,  119;  Brown  vs.  De  Tasht, 
1  Jacob,  295.  Heathcote  vs.  Hulme,  1  Jac.  4r  Walk.,  122,  and 
is  too  firmly  established  to  be  questioned. 


GOODBUKN  VS.  STEVENS.  431 

And,  therefore,  it  was  the  undoubted  privilege  of  the  appel- 
lant on  the  case  made  by  her  bill,  to  demand  the  profits  pro- 
duced by  the  employment  of  her  husband's  share  of  the  property, 
from  his  death  to  the  institution  of  her  suit ;  the  assertion  of 
this  claim  cannot  be  justly  regarded  as  evidence  of  an  assent, 
on  her  part,  to  the  continuation  of  the  partnership,  so  as  to  im- 
plicate her  as  a  partner,  or  as  a  ratification  of  the  acts  of  the 
surviving  partners. 

We  cannot  perceive  anything  in  the  conduct  of  the  appel- 
lant evincive  of  her  assent  to  the  continuance  of  this  partner- 
ship ;  and  this  question  is  placed  beyond  controversy  by  the 
commanding  fact,  that  in  her  bill  she  expressly  prays  that  the 
defendants  may^be  restrained  from  using  in  the  business  of  the 
concern,  her  husband's  proportion  of  the  personal  estate. 

There  is  another  objection  to  the  position  taken  by  the  coun- 
sel for  the  appellees,  that  cannot  be  overcome ;  and  that  is, 
that  it  is  manifest  from  the  answers  of  the  surviving  partners, 
that  they  never  consented  to  receive  the  administratrix  into  the 
firm  as  a  continuing  partner.  While  they  acknowledge  their 
liability  to  account  to  her  for  the  partnership  property  as  it  ex- 
isted at  the  death  of  Samuel  Hayes,  they  reject  the  idea,  that 
she  possessed  any  authority  to  interfere  in  the  management  of 
the  affairs  of  the  company  subsequent  to  that  period.  We  have 
already  seen  that  a  contract  of  this  description  is  one  of  personal 
confidence,  in  which  the  ability,  skill,  and  character  of  each 
partner  is  supposed  to  enter  into  the  consideration  of  his  asso- 
ciates in  the  formation  of  the  connection,  and  that,  therefore, 
there  can  be  no  legal  continuance  of  a  partnership  dissolved  by 
death,  in  the  absence  of  a  new  assent  on  the  part  of  the  surviv- 
ors. You  cannot  impose  upon  the  surviving  partner,  the  obli- 
gation to  introduce  into  the  partnership  the  representative  of 
his  former  associate.  Thornton  vs.  Dixon,  3  Bro.  Ch.  R.,  200  ; 
Marquand  vs.  New  York  Manufacturing  Company,  17  Johns. , 
535 ;  Pearce  vs.  Chamberlain,  2  Ves.  Sr.,  33. 

We  think,  therefore,  that  the  death  of  Samuel  Hayes,  on  the 
20th  of  May,  1825,  is  to  be  treated  as  the  period  of  the  disso- 
lution of  this  partnership,  and  that  the  accounts  are  to  be  taken 


432  HIGH   COURT  OF  CHANCERY. 

at  that  time,  for  the  purpose  of  ascertaining  the  condition  of 
the  partnership,  and  the  rights  of  the  respective  partners  to  the 
joint  property. 

The  second  and  third  propositions  determined  by  the  Chan- 
cellor relate  to  the  question,  as  to  what  extent  and  for  what 
purposes  the  real  estate  of  this  partnership  was  to  be  treated  as 
converted  into  personalty  ?  We  consider  it  as  now  established, 
by  at  least  a  preponderance  of  authority,  and  upon  proper  and 
just  grounds,  that  the  whole  partnership  estate,  whether  con- 
sisting of  real  or  personal  property,  is  to  be  regarded  in  the 
view  of  a  court  of  equity,  as  a  consolidated  fund,  to  be  appro- 
priated primarily  and  exclusively  to  the  satisfaction  of  all  the 
partnership  engagements.  In  Fereday  vs.  Whightwick,  4  Con. 
C.  R.j  319,  the  master  of  the  rolls  said — "The  general  princi- 
ple is,  that  all  property  acquired  for  the  purpose  of  a  trading 
concern,  whether  it  be  of  a  personal  or  real  nature,  is  to  be  con- 
sidered as  partnership  property,  and  is  to  be  first  applied  ac- 
cordingly, in  the  satisfaction  of  the  demands  of  the  partner- 
ship." 

In  Hoxie  vs.  Carr,  1  Sum.,  183,  Mr.  Justice  Story,  in  deliv- 
ering the  opinion  of  the  court,  says  : 

"A  question  often  arises,  whether  real  estate  purchased  for 
a  partnership  is  to  be  deemed  for  all  purposes  personal  estate, 
like  other  effects.  That  it  is  so  as  to  the  payment  of  the  part- 
nership debts,  and  the  adjustment  of  partnership  rights,  and 
winding  up  the  partnership  concerns  is  clear,  at  least  in  the 
view  of  a  court  of  equity."  And  again  he  says: 

"The  question,  however,  in  the  present  case,  is  not  whether 
real  estate,  when  it  is  partnership  property,  becomes  to  all  in- 
tents and  purposes,  in  cases  of  intestacy  and  wills,  personalty, 
but  whether  it  be  so  treated  in  equity  as  between  the  partners 
themselves  and  the  creditors  of  the  partnership.  It  seems  to  be 
the  established  doctrine  of  courts  of  equity,  that  it  is  to  be 
treated  as  personalty,  as  between  the  partners  and  their  credit- 
ors, in  whosoever  name  it  may  stand  on  the  face  of  the  convey- 
ance." This  principle  is  sustained  by  the  cases  of  Dyer  vs. 
Clark,  5  Medf.y  562  ;  Howard  vs.  Priest,  5  Medf.,  582,  and 


GOODBURN  VS.  STEVENS.  433. 

is  to  be  received,  we  think,  as  the  correct  doctrine  upon  this 
subject. 

But  the  true  question  presented  for  our  consideration,  on  this 
branch  of  the  case,  and  that  to  which  the  argument  of  the  coun- 
sel has  been  addressed,  is:  whether  assuming  the  partnership 
to  have  been  solvent,  on  the  20th  of  May,  1825,  the  period  of 
its  dissolution,  the  interest  of  Samuel  Hayes  in  the  partnership 
lands  is  to  be  treated  as  real  estate,  descendible  to  his  heirs, 
and  chargeable  with  dower  ;  or  as  changed  for  all  purposes  into 
personal  estate,  and  distributable  as  such  among  his  personal 
representatives  ? 

It  cannot  be  denied,  that  upon  this  question,  there  has  been, 
both  in  England  and  the  United  States,  great  diversity  of  judi- 
cial opinion  and  decision.  But  the  case  before  us  is  clear  of 
any  agreement  between  the  partners,  direct  or  implied,  impress- 
ing upon  their  real  estate  the  character  of  personalty,  and  under 
such  circumstances  we  consider  the  true  rule  to  be,  that  the  in- 
terest of  the  deceased  partner  in  the  partnership  lands  is  to  be 
treated  as  real  estate,  and  that  the  appellant  is  entitled  to  a  suit- 
able allowance  out  of  the  proceeds  of  the  sales  of  these  lands, 
as  an  equivalent  for  her  dower ;  provided,  of  course,  the  part- 
nership shall  be  found  to  have  been  solvent  at  the  period  of  its 
dissolution. 

The  doctrine  that  real  estate  purchased  with  the  partnership 
funds  for  its  use,  and  on  its  account,  is  to  be  regarded  in  a  court 
of  equity,  as  the  personal  estate  of  the  company  for  all  purposes 
of  the  partnership,  stands  upon  a  familiar  and  just  principle.  It 
is  the  clear  case  of  an  implied  or  constructive  trust,  resulting 
from  the  relation  which  the  partners  bear  to  each  other,  and 
from  the  fact  that  the  estate  was  brought  into  the  firm,  or  pur- 
chased with  the  funds  of  the  partnership,  for  the  convenience 
and  accommodation  of  the  trade.  For  this  reason,  in  whoseso- 
ever name  the  legal  title  may  reside,  the  estate  is  held,  in  the 
eye  of  a  court  of  equity,  for  the  use  of  the  partners  as  the  ces~ 
tui  que  trusts,  and  if  a  partner  dies,  the  legal  estate  of  which  he 
was  seized  as  a  tenant  in  common  passes  to  his  heirs  or  de- 
visees, clothed  with  a  similar  trust  in  favor  of  the  surviving 
VOL.  i — 37 


434  HIGH  COURT  OF  CHANCERY. 

partners,  until  the  purposes  for  which  it  was  acquired,  have 
been  accomplished. 

But  when  all  the  claims  against  the  partnership  have  been 
satisfied,  the  partnership  account  adjusted,  and  the  object  of  the 
trust  fulfilled,  in  a  case  where  the  partners  have  not,  either  by 
an  express  or  implied  agreement,  indicated  an  intention  to  con- 
vert their  lands  into  personal  estate,  no  solid  reason  can  be  as- 
signed, why  the  real  estate  should  not  be  treated  in  a  court  of 
equity,  as  at  law,  according  to  its  real  nature,  and  consequent- 
ly chargeable  with  the  widow's  dower. 

The  proposition  thus  announced  will  be  found  to  be  sustain- 
ed, among  other  cases,  by  Thornton  vs.  Dixon,  3  Bro.  C.  R.y 
200;  Bell  vs.  Phym,  7  Fes.,  456  ;  Balmain  vs.  Shore,  9  Ves. 
508 ;  Cookson  vs.  Cookson,  8  Simons  C.  R.,  529,  and  by  a 
very  elaborate  and  able  opinion,  delivered  by  Chief  Justice 
Shaw,  in  Dyer  vs.  Clark,  5  Medf.,  562.  In  this  case  it  ap- 
peared, that  the  real  estate  in  controversy  was  purchased  by  the 
partners,  with  the  partnership  funds,  for  the  use  and  conveni- 
ence of  the  trade.  On  the  death  of  Burleigh,  one  of  the  part- 
ners, his  administrator  sold  his  undivided  moiety  of  the  lands 
for  the  sum  of  fifteen  hundred  dollars.  The  firm  was  represent- 
ed to  be  insolvent,  unless  the  proceeds  of  the  real  estate,  so  sold 
by  the  administrator,  should  be  applied  to  the  liquidation  of  the 
partnership  accounts.  The  prayer  of  the  bill  was,  that  the 
plaintiff  might  be  allowed  to  retain  the  rents  which  had  accru- 
ed since  the  decease  of  Burleigh,  to  be  applied  to  the  adjust- 
ment of  the  partnership  accounts,  and  that  the  defendant  might 
be  restrained  from  paying  the  proceeds  of  the  real  estate  to  the 
individual  creditors  of  Burleigh.  The  widow  and  heirs  of  the 
deceased  partner  also  asserted  their  claims  upon  the  fund. 

In  this  case,  in  reference  to  the  rights  of  the  widow,  the 
court  say : 

"That  the  right  of  the  widow  is  not  distinguishable  from  that 
of  the  creditors  and  heirs  of  the  deceased  partner.  That  as  far 
as  this  estate  was  held  in  trust  by  her  deceased  husband,  for  the 
purposes  of  the  partnership,  she  was  not  entitled  to  dower. 
For  all  beyond  that,  she  was  entitled,  because  he  held  it  as  real 
estate,  unless  she  is  barred  by  her  release." 


GOODBURN  VS.  STEVENS.  435 

It  follows  from  the  views  thus  expressed,  that  we  consider 
the  partnership  as  dissolved  on  the  20th  of  May,  1825,  and  that 
that  is  the  period  at  which  the  partnership  accounts  are  to  be 
stated. 

That  the  whole  estate  of  the  partnership,  consisting  both  of 
its  real  and  personal  property,  is  to  be  applied  exclusively  and 
in  the  first  place,  to  the  payment  of  all  the  partnership  engage- 
ments, as  they  existed  on  the  20th  of  May,  1825. 

That  if  the  partnership  was  solvent  at  the  period  of  its  dis- 
solution, the  widow  of  Samuel  Hayes  is  entitled  to  a  proper  al- 
lowance out  of  the  proceeds  of  the  sale  of  the  partnership  lands, 
as  an  equivalent  for  her  dower.  But  as  to  what  sum  is  to  be 
regarded  as  a  fair  equivalent  for  her  dower  under  the  circum- 
stances of  the  case,  and  whether  she  has  a  lien  for  her  dower 
on  the  proceeds  of  the  sale,  are  questions  upon  which  we  ex- 
press no  opinion,  as  they  are  not  open  for  adjudication  on  this 
appeal. 

The  order  of  the  Chancellor  is  reversed,  and  the  case  re- 
manded to  the  Court  of  Chancery  for  further  proceedings. 

Decree  reversed  without  costs,  and  cause  remanded. 

[In  the  intervening  period  between  the  appeal  taken  and  the 
remanding  of  the  cause  to  this  court,  various  incidental  pro- 
ceedings were  had,  unnecessary  to  be  mentioned  here.  After 
the  cause  was  remanded  as  aforesaid,  the  special  auditor  filed 
another  report  and  several  accounts,  to  which  sundry  exceptions 
were  taken  by  the  parties,  complainants  and  defendants,  respec- 
tively ;  and  the  same  having  been  argued  before  the  present 
Chancellor  (JOHNSON,)  he,  at  this  term,  (after  stating  the  points 
decided  by  the  Court  of  Appeals,)  delivered  the  following  opin- 
ion, in  which  the  nature  of  the  points  now  in  controversy  will 
sufficiently  appear.] 

THE  CHANCELLOR,  (JOHNSON  :) 

It  is,  therefore,  settled  by  the  Court  of  Appeals,  that  the  ac- 
counts are  to  be  taken  to  the  day  of  the  death  of  Samuel  Hayes, 
and  that  the  right  of  his  administratrix  to  recover  as  a  creditor, 
depends  upon  the  state  of  the  accounts  at  that  time. 


436  HIGH  COURT  OF  CHANCERY. 

The  Auditor  reports  that  the  deceased  was  a  creditor  of  the 
firm  at  that  time,  and  this  does  not  appear  to  be  now  disputed  ; 
the  controversy  with  reference  to  this  part  of  the  claim  of  the 
complainant,  applying  to  its  amount,  and  not  to  its  existence. 
In  the  statement  of  the  Auditor,  designated  as  G.  No.  19,  the 
principal  of  this  claim  is  stated  to  be  $6,644  56,  and  in  account 
G.  No.  24,  which  is  an  account  between  the  administrator  and 
the  surviving  partners,  interest  is  allowed  her  on  this  sum  from 
the  1st  of  May,  1826  to  the  1st  of  September,  1848. 

Both  sides  are  dissatisfied  with  this  mode  of  stating  the  ac- 
count, the  complainants  insisting  that  interest  should  run  from 
the  1st  of  May,  1825  to  the  day  of  the  death,  and  the  defend- 
ants insisting  that  as  the  bill  prays  for  profits,  the  Auditor  should 
not  have  allowed  interest,  but  should  have  stated  an  account  of 
profit  and  loss  from  1825  to  1841,  when  a  decree  was  passed 
for  a  sale  of  the  property,  and  have  allowed  the  administratrix 
a  proper  proportion  of  those  profits. 

The  rule  upon  the  subject  of  the  right  of  the  representatives 
of  a  deceased  partner  at  their  election,  to  demand  an  account 
of  the  surviving  partners,  (if  they  continue  the  trade,)  of  the 
profits,  or  to  charge  them  with  interest  as  stated  in  Story  on 
Part.,  section  343,  was  adopted  by  the  Court  of  Appeals,  when 
this  case  was  in  that  court,  and  must,  therefore,  be  looked  upon 
as  the  true  one. 

It  is  there  said,  "that  if  the  surviving  partners  continue  the 
trade  orlbusiness,  it  is  at  their  own  risk,  and  they  will  be  liable 
at  the  option  of  the  deceased  partner,  to  account  for  the  profits 
made  thereby,  or  to  be  charged  with  interest  upon  the  deceased 
partner's  share  of  the  surplus,  besides  bearing  all  the  losses." 

The  correctness  of  this  rule  has  not  been,  and  of  course  can- 
not be  denied,  sanctioned  as  it  is  by  the  high  authority  of  the 
Court  of  Appeals  ;  but  it  is  said,  that  no  election  has  been 
made  in  this  case,  the  complainant,  the  administratrix  of  the 
deceased  partner,  having  only  called  for  an  account  of  the 
profits  with  a  view  of  determining  whether  she  will  claim  a 
share  of  those  profits  or  interest  on  the  amount  due  her  intestate. 
Such,  however,  is  not  my  understanding  of  the  bill.  It  al- 


GOODBURN  VS.  STEVENS.  437 

leges  that  the  surviving  partners  have  carried  on  the  business 
under  the  name  and  style  of  the  old  firm  ;  and  after  making  ex- 
pensive improvements  from  the  profits  of  the  concern,  they  have 
divided  among  themselves  large  annual  sums,  and  it  prays  that 
these  surviving  partners  "may  be  required  to  pay  to  the  com- 
plainant as  administratrix,  the  share  of  her  intestate  of  the  per- 
sonal property  of  said  concern,  as  well  as  his  share  or  portion 
of  the  profits  which  have  accrued  thereon  since  his  death." 

My  opinion,  therefore,  would  have  been,  independently  of  the 
opinion  of  the  Court  of  Appeals,  that  the  complainant  had  made 
her  election  to  claim  a  share  of  the  profits  ;  and  I  should  not 
have  been  prepared  to  say,  that  having  so  elected,  she  would 
have  been  at  liberty  afterwards  to  claim  interest. 

But  the  Court  of  Appeals,  as  I  think,  have  settled  this  ques- 
tion also.  They  say,  "it  was  the  undoubted  privilege  of  the 
appellant,"  (the  complainant,)  "on  the  case  made  by  the  bill, 
to  demand  the  profits  produced  by  the  employment  of  her  hus- 
band's share  of  the  property,  from  his  death  to  the  institution 
of  the  suit."  And  having  thus  elected  to  claim  profits  and  not 
interest,  and  the  general  rule  being  that  the  party  is  not  at 
liberty  to  claim  profits  for  one  period  and  interest  for  another, 
I  think  the  complainants  must  be  restricted  to  a  claim  for  pro- 
fits, until  the  31st  of  August,  1841,  when  the  business  was 
brought  to  a  close,  by  the  decree  for  a  sale  of  the  property. 

An  account  of  profits  must,  therefore,  be  taken  down  to  that 
period,  and  upon  the  sum  thus  found  due  the  complainant,  to- 
gether with  the  amount  due  her  intestate  at  his  death,  interest 
must  be  allowed  from  the  date  of  the  decree  to  the  mean  day  of 
sale,  under  said  decree. 

Besides  this  claim  against  the  partnership  growing  out  of  its 
indebtedness  to  the  deceased  partner,  the  complainant,  the 
widow  of  Samuel  Hayes,  claims  a  reasonable  and  just  allow- 
ance in  lieu  of  her  dower  interest,  in  the  real  estate  owned  by 
her  husband,  and  which  constituted  a  part  of  the  partnership 
property.  This  real  estate,  as  has  been  decided  by  the  appel- 
late court,  though  regarded  in  a  court  of  equity  as  personal  es- 
tate for  all  partnership  purposes,  yet  in  the  absence  of  an  ex- 
37* 


438  HIGH   COURT  OF   CHANCERY. 

press  or  implied  agreement,  indicating  an  intention  to  convert 
it  into  personal  estate,  will,  when  the  claims  against  the  part- 
nership have  been  satisfied,  and  the  partnership  accounts  ad- 
justed, be  treated  in  a  court  of  equity  as  at  law,  as  real  estate, 
and  be  chargeable  with  the  dower  of  the  widow. 

In  this  case,  the  Court  of  Appeals  have,  in  express  terms, 
decided,  that  the  widow  of  Samuel  Hayes,  is  entitled  to  a 
proper  allowance  out  of  the  proceeds  of  the  sales  of  the  partner- 
ship lands,  as  an  equivalent  for  her  dower,  if  the  partnership 
was  solvent  at  the  period  of  its  dissolution.  And  the  question 
is,  what  this  proportion  shall  be,  and  whether,  in  addition  to 
the  equivalent  for  dower,  she  is  not  entitled  to  rents  and  profits, 
from  the  period  of  the  death  of  her  husband  until  the  sale  of  the 
property. 

The  court  of  Appeals  have  said  nothing,  in  regard  to  any 
claim  of  the  widow  for  arrears  of  dower,  or  interest  on  those 
arrears  ;  nor  have  they  decided  whether  she  has  a  lien  for  her 
dower,  on  the  proceeds  of  sale.  All  that  has  been  decided,  is, 
that  when  the  claims  against  the  partnership  have  been  satis- 
fied, the  accounts  adjusted,  and  the  object  of  the  trust  fulfilled, 
the  widow  is  to  be  entitled  to  an  allowance  out  of  the  proceeds 
of  the  sales,  as  an  equivalent  for  her  dower  in  her  husband's 
interest  in  the  real  estate. 

The  real  estate  sold  for  $33,771  27,  and  the  Auditor  reports, 
that  on  the  17th  of  September,  1845,  that  being  the  date  of  the 
last  sale,  the  proportion  of  the  widow,  as  an  equivalent  for  the 
interest  of  her  husband  therein,  was  1-8,  she  being  about  forty- 
seven  years  of  age,  amounting  to  $1,731  91. 

It  is  insisted  on  the  part  of  the  complainants,  that  this  mode 
of  stating  the  account  is  erroneous  ;  first,  because  the  propor- 
tion should  have  been  determined  by  her  age  at  the  time  of  the 
death  of  her  husband,  in  1825;  and,  secondly,  because  no  allow- 
ance is  made  her,  for  arrears  of  dower  from  that  time. 

My  opinion  is,  that  the  death  of  the  husband,  in  1825,  is  the 
epoch  to  be  taken,  in  fixing  the  allowance  to  be  made  to  the 
widow  in  lieu  of  her  dower,  and  that  she  must  be  paid  the 
equivalent  for  the  value  of  her  interest  at  that  time,  according 


GOODBURN  VS.  STEVENS.  439 

to  the  rule  of  this  court.  The  accounts  are  to  be  taken  to  that 
period  ;  and  the  equivalent  to  her,  must  be  measured  by  the 
value  of  her  husband's  interest  in  the  real  estate  of  the  partner- 
ship at  that  time,  after  the  claims  of  the  creditors  are  satisfied. 

But,  the  complainants  insist,  that  not  only  has  the  Auditor 
erred,  in  fixing  on  the  17th  of  September,  1845,  as  the  period 
for  determining  the  money  equivalent  to  be  paid  the  widow,  in 
lieu  of  her  dower ;  but  that  he  has  also  erred  in  not  making 
her  an  allowance  for  arrears  of  dower  from  her  husband's  death 
to  the  day  of  sale,  with  interest  on  the  yearly  arrears  as  they 
accrued. 

That  she  was  entitled  to  a  money  allowance  in  commutation 
of  dower,  has  been  settled  by  the  Court  of  Appeals.  Is  she 
also  entitled  to  arrears  of  dower,  and  interest  on  those  arrears? 
The  complainants  say  that  she  is,  and  that  the  annual  allow- 
ance ought  to  be  computed  on  one-third  of  the  interest  on 
$13,855  29,  the  estimated  proportion  of  the  product  of  the  real 
estate  belonging  to  the  heirs  of  her  husband. 

I  do  not  find  it  anywhere  decided,  that  a  widow  can  recover 
interest  on  arrears  of  dower ;  and  in  Park  on  Dower,  332, 
Lord  Loughborough,  is  said  to  have  stated,  that  there  were  no 
cases  warranting  such  a  proposition.  But  without  deciding,  or 
intending  to  express  any  opinion  on  the  right  to  recover  interest 
on  the  arrears  of  dower,  when  the  title  of  the  widow  to  recover 
the  arrears  themselves  is  clear,  the  question  here  is,  whether 
under  the  peculiar  circumstances  of  this  case,  and  upon  this 
bill,  such  title  can  be  maintained. 

The  bill  does  not  claim  arrears  of  dower.  The  prayer  is, 
that,  "the  complainant,"  (the  widow,)  "may  have  a  reasonable 
and  just  allowance  made  for  her  dower  in  her  said  husband's 
interest  in  said  lands  and  premises." 

There  was  no  demand  upon  the  defendants,  to  account  for 
the  rents  and  profits  of  the  lands,  the  claim  and  the  account  of 
profits,  having  reference  exclusively  to  profits  made  by  the  sur- 
viving partners,  from  the  employment  of  the  partnership  prop- 
erty, and  the  proportion  thereof,  to  which  the  complainant,  as 
administratrix  of  her  husband,  was  entitled.  And  it  would 


440  HIGH  COURT  OF  CHANCERY. 

seem  to  be  quite  obvious,  that  if  the  defendants  were  made  to 
account  for  profits  to  the  representative  of  their  deceased  part- 
ner, for  the  use  of  this  real  estate  as  a  part  of  the  partnership 
property  ;  and  are  also  compelled  to  pay  the  complainant,  as 
widow,  a  proportion  of  those  profits  as  arrears  of  dower,  they 
will,  to  that  extent,  be  paying  twice  for  the  use  of  the  same 
property.  Her  deceased  husband,  who  owned  nearly  one  half 
of  all  the  real  estate  employed  in  the  business  of  the  partners, 
would  receive — or  rather  she,  as  his  representative,  would  re- 
ceive nearly  one  moiety  of  the  profits,  of  which,  as  there  were 
no  children  of  the  marriage,  she,  as  widow,  would  be  entitled  to 
one  half;  and  then,  upon  the  ground  taken  by  the  complainants, 
she  would  as  dowress,  receive  one-third  of  the  supposed  annual 
value  of  the  interest  of  her  husband  in  the  same  lands.  It  ap- 
pears to  me,  there  can  be  no  equity  in  this,  and  it  cannot  be- 
allowed. 

There  are,  moreover,  circumstances  attending  this  property, 
which  would  seem  to  take  it  out  of  the  general  rule  applicable 
to  ordinary  cases  of  bills  for  dower,  and  rents  and  profits.  The 
general  rule  is  well  settled,  that  the  courts  will  decree  dower, 
and  rents  and  profits,  to  the  widow  from  the  death  of  her  hus- 
band. Wells  and  Wife  vs.  Beall,  2  Gill  and.  Johns.,  468. 

But  this  property,  being  partnership  property,  and  as  such 
subject  to  the  partnership  engagements ;  and  as  upon  the  death 
of  the  deceased  partner  it  descended  to  his  heirs  at  law,  clothed 
with  an  implied  or  constructive  trust,  until  the  purposes  of  the 
partnership  were  accomplished ;  the  right  of  the  widow  to 
dower  was  postponed  until  those  purposes  should  be  accom- 
plished by  paying  all  claims  against  the  partnership,  and  ad- 
justing the  accounts.  Such  was  the  decision  of  the  Court  of 
Appeals,  when  this  case  was  before  it  in  1847. 

The  right,  therefore,  of  the  widow  was  not  a  fixed  and  ab- 
solute right,  but  one  depending  upon  the  contingency,  that 
there  would  be  a  surplus  after  paying  the  debts  of  the  partner- 
ship ;  and  consequently  it  cannot,  I  think,  be  maintained,  that 
the  principles  applicable  to  cases  in  which  the  title  of  the  widow 
is  clear,  and  consummate  by  the  death  of  the  husband,  will 
apply  to  this  case.  The  property  was  subject  to  a  trust  para- 


GOODBURN  VS.  STEVENS.  441 

mount  to  the  title  of  the  widow  ;  and  until  that  trust  was  ful- 
filled, her  right  was  in  suspense ;  and  hence  she  cannot  have 
rents  and  profits  from  his  death.  Dower  could  not  have  been 
assigned  to  her  at  that  time,  nor  can  she  have  rents  and  profits, 
the  incidents  to  the  dower. 

It  is  true,  as  has  been  urged,  that  it  was  the  business  of  the 
surviving  partners  to  pay  the  debts,  and  wind  up  the  concern ; 
but  if  they  failed  to  do  so,  the  complainant  had  it  in  her  power 
to  stimulate  them  by  a  bill  in  this  court :  and  a  bill  was  ac- 
cordingly filed  by  her  for  that  purpose.  But  an  examination  of 
the  proceedings  will  show  that  the  long  delay  which  has  taken 
place,  and  the  slow  progress  of  the  cause,  is  chargeable,  per- 
haps, in  a  greater  degree  to  the  complainants  than  the  de- 
fendants. 

My  opinion  therefore  is,  that  the  complainant  can  only  have 
an  equivalent  in  money,  payable  out  of  the  proceeds  of  sales, 
according  to  her  age,  and  the  state  of  her  health  at  the  period 
of  the  death  of  her  husband,  with  interest  thereon  from  the 
mean  day  of  sale;  but  that  she  is  not  entitled  to  arrears  of 
dower,  or  interest  in  lieu  thereof,  from  his  death  until  that  day. 
And  I  am  also  of  opinion,  that  the  widow  is  entitled  to  receive 
this  sum  in  preference  of  the  creditors  of  the  new  partnership, 
becoming  such  since  the  death  of  her  husband. 

With  regard  to  the  bonds  and  mortgage  to  William  Seal,  I 
think  the  principal  sums  should  be  paid  out  of  the  personal  es- 
tate of  the  mortgagor,  in  the  hands  of  his  administratrix,  and 
if  that  is  not  adequate  for  their  payment,  then  the  balance 
should  be  paid  out  of  the  proceeds  of  that  portion  of  the  real 
estate  contained  in  the  mortgage. 

The  complainants  claim  in  their  bill,  that  the  defendants 
shall  be  compelled  to  pay  this  claim  from  that  portion  of  the 
concern  which  was  originally  bought  of  Seal,  which  was  a 
clear  recognition  of  its  validity  ;  but  the  rule  being,  that  as 
between  the  heir  and  the  executor,  the  personal  estate  shall  ex- 
onerate the  real — being  the  primary  fund  for  the  payment  of 
the  mortgage — the  heir  in  equity  shall  have  the  preference,  and 
may  insist  upon  such  application  of  the  personal  estate. 
2  Powell,  777,  780. 


442  HIGH  COURT  OF  CHANCERY. 

This  being  so,  I  can  see  no  reason  why  the  heirs  at  law  of 
Samuel  Hayes  may  not  insist,  that  his  personal  estate,  as  be- 
tween his  personal  representatives  and  themselves,  shall  be  ap- 
plied in  exoneration  of  the  real.  And  as  both  the  personal 
and  the  real  estate  are  now  in  this  court,  brought  here  by  the 
act  of  the  administratrix,  it  seems  to  me,  this  court  may  now 
see,  that  the  proper  application  is  made. 

If  this  mortgage  debt  should  be  paid  by  the  heirs,  they 
would  have  a  clear  right  to  reimbursement  out  of  the  personal 
estate,  and  the  latter  being  in  this  court,  no  good  reason  sug- 
gests itself,  why  the  proper  application  should  not  be  made  at 
once,  to  prevent  circuity,  and  save  expense  and  delay.  It  is 
not  that  this  court  usurps  the  powers  of  the  Orphans  Court, 
but  upon  a  principle  of  equity,  which  regards  the  personal  es- 
tate as  the  primary,  and  natural  fund  for  the  payment  of  debts  ; 
and  the  court  will — having  both  funds  under  its  control — apply 
them  in  the  order  in  which,  as  between  the  heir  and  executor, 
they  are  liable.  1  Story's  Eq.,  sec.  571. 

I  think,  therefore,  this  mortgage  debt,  or  the  principle  thereof, 
must  be  paid  out  of  the  personal  estate,  if  it  is  sufficient  for  the 
purpose. 

I  have  said,  that  the  principal  sums  due  upon  the  mortgage 
to  William  Seal,  should  be  paid  out  of  the  personal  estate  of 
Hayes,  the  mortgagor;  but  I  do  not  think  the  interest  should 
be,  which  accrued  between  the  death  of  Hayes,  and  the  sales 
of  the  property  in  1845.  During  that  period  the  defendants 
were  in  possession  of  the  mortgaged  property,  and  acknowl- 
edged that  they  received  some  profits ;  though,  in  their  answer 
they  say  they  received  very  little ; — the  profits  being  applied, 
as  they  represent,  to  keeping  in  repair,  and  enlarging  the  es- 
tablishment. It  appears  to  me,  however,  that  they  ought  to 
have  kept  down  the  interest  upon  the  debt,  and  that  the  pay- 
ments which  they  made  on  account  of  interest,  and  which  are 
stated  in  the  Auditor's  statement  G.  No.  6,  must  be  assumed 
to  have  been  made  out  of  the  profits. 

There  is  another  reason  why  the  interest  upon  the  bonds 
and  mortgage  to  Seal  should  not  be  thrown  upon  the  personal 
estate  in  the  hands  of  the  administratrix  of  Hayes. 


GOODBURN  VS.  STEVENS.  443 

The  evidence  shows  that  the  property  of  the  partnership  was 
worth  quite  as  much  at  the  death  of  Hayes  in  1825,  as  when 
the  sales  were  made,  although  expensive  improvements  were 
made  out  of  the  profits  after  his  death,  and  the  accumulation 
of  interest,  therefore,  upon  those  bonds,  would  be  a  clear  loss 
to  the  estate  of  Hayes,  if  the  burden  must  be  borne  by  his  per- 
sonal estate.  The  surviving  partner  might,  and  ought,  upon 
his  death,  to  have  sold  the  property  and  divided  the  proceeds 
among  the  parties  entitled,  according  to  their  respective  inter- 
ests, and  in  that  event,  the  estate  of  Hayes  would  have  had  to 
pay  only  the  amount  due  at  that  time.  But,  by  keeping  it,  and 
carrying  on  the  business,  they  suffered  a  large  amount  of  in- 
terest to  accrue,  which  if  not  paid  by  them,  must  be  paid  by 
the  estate  of  Hayes,  without  any  corresponding  advantage  in 
the  appreciation  of  the  property.  This,  it  seems  to  me,  ought 
not  to  be  allowed.  According  to  all  the  authorities,  the  sur- 
viving partners  have  no  right  to  expose  the  estate  of  the  de- 
ceased partner  to  the  vicissitudes  of  the  business,  without  the 
consent  of  the  persons  interested  in  his  estate. 

The  interest,  therefore,  upon  these  bonds  to  Seal,  from  the 
death  of  Hayes  until  the  property  was  sold,  must  be  paid  out 
of  the  profits,  or  out  of  the  defendant's  proportion  of  the  pro- 
ceeds of  the  real  estate  bought  of  him. 

With  regard  to  the  bond  to  Rachel  Bryant,  (from  Samuel 
Hayes,  which  was  paid  by  certain  of  the  defendants,  and  as- 
signed to  them,)  it  is,  I  think,  barred  by  limitations,  and  cannot 
be  set  up  as  against  the  complainants. 

Several  sums  are  allowed  the  trustee  in  statement  G.  No.  14, 
which,  I  think,  are  not  properly  chargeable  against  the  proceeds 
of  the  sales. 

His  own  personal  expenses,  and  the  travelling  expenses  of 
other  persons,  and  for  clover  seed,  and  other  matters  connected 
with  the  cultivation  of  the  land,  cannot  be  allowed.  Nor  can 
he  be  allowed  for  sums  paid  R.  M.  Hayes,  nor  for  postages  ; 
but  I  see  no  objection  to  an  allowance  for  counsel  fees,  which 
are  admitted  to  be  reasonable. 

The  complainants'  8th  exception,  (to  the  deduction  from  her 
claim,  of  that  proportion  of  the  costs  incurred  in  the  cause,  and 


444  HI(*H  COURT  OF  CHANCERY. 

the  trustees'  expenses  and  allowances,  which  the  interest  of  her 
late  husband  bore  to  the  whole  partnership  estate,)  appears  to 
me  to  be  well  taken.  The  administratrix  of  Hayes  is  to  be  re- 
garded as  a  creditor,  and  entitled  to  be  paid  as  any  other  credi- 
tor would  be,  in  preference  to  the  parties  who  held  the  estate 
subject  to  her  claim. 

It  has  already  been  said,  that  the  bonds  to  Seal,  secured  by 
the  mortgage,  are,  as  to  the  principal  sums,  to  be  paid  out  of 
the  personal  estate  of  Hayes  in  the  hands  of  his  administratrix, 
if  it  be  sufficient ;  and  that  the  interest  thereon  from  the  death 
of  Hayes  until  the  property  was  sold,  must  be  paid  by  the  de- 
fendants, either  from  the  rents  and  profits,  or  out  of  their  pro- 
portion of  the  proceeds  of  the  real  estate.  The  interest  from 
the  period  of  the  sales  must  be  paid  by  the  administratrix  out 
of  the  proceeds  of  the  personal  estate.  And  I  have  also  said, 
that  this  court  will  retain  the  money,  and  make  the  proper  ap- 
plication of  it  in  this  court,  upon  the  grounds  already  stated. 

But  it  is  not  to  be  understood,  that  the  court  will,  in  this  pro- 
ceeding, discharge  the  functions  of  the  Orphans'  Court,  and 
settle  the  administration  accounts  ;  and,  therefore,  when  the 
accounts  are  stated,  ascertaining  the  sum  due  the  complainant, 
as  administratrix  of  her  husband,  after  deducting  therefrom  the 
amount  payable  on  the  mortgage  debt,  the  residue  will  be  paid 
over  to  her,  to  be  accounted  for  in  the  Orphans'  Court  of  the 
proper  county. 

It  may  also  be  said,  that  I  approve  of  the  mode  in  which  the 
Auditor  has  stated  the  trustees'  commissions  on  the  several 
sales,  (the  trustees  having  calculated  the  commissions  separate- 
ly on  each  sale,  when  made  at  different  epochs,  and  not  treat- 
ed the  sales  as  made  at  one  time  ;)  and  that  in  charging  inter- 
est on  Seal's  bonds,  he  should  charge  up  to  the  mean  day  of 
sale. 

Many  of  the  exceptions  going  to  the  details  of  the  accounts, 
it  is  not  necessary  to  decide,  as  the  present  questions  which 
will  be  considered  by  the  Orphans'  Court,  when  the  accounts  of 
the  administratrix  are  stated  there. 

[No  appeal  was  taken  from  this  order.] 


GWYN  VS.  LEE.  445 


CHARLES  R.  GWYN  AND  JOHN  R.  GWYN 

vs.  }>      JULY  TERM,  1849. 

JOSIAH  LEE  ET  AL. 


1      Jci 


[HOLDER  OF  PROMISSORY  NOTES — USURY.] 

A  bonafide  holder  of  a  negotiable  instrument  for  a  valuable  consideration,  with- 
out notice  of  facts  which  effect  its  validity  as  between  antecedent  parties,  if 
he  takes  it  by  indorsement  before  it  becomes  due,  acquires  a  valid  title,  and 
may  recover  upon  it,  though,  as  between  the  antecedent  parties,  the  trans- 
action may  be  invalid. 

The  holder  of  such  paper  before  it  is  due,  is  not  bound  to  prove  that  he  is  a 
bonufide  holder  for  a  valuable  consideration  without  notice  ;  for  the  law  will 
presume  this,  in  the  absence  of  rebutting  proof. 

If  the  want,  or  failure,  or  illegality  of  the  consideration  has  been  established, 
or  if  it  be  shown  that  the  note  was  lost,  or  stolen,  before  it  came  into  the 
possession  of  the  holder,  it  is  then  incumbent  on  him  to  show  that  he  has 
given  value  for  it. 

Since  the  act  of  1845,  ch.  352,  usurious  instruments  are  not,  under  any  circum- 
stances, avoided,  but  are  made  valid  securities  in  all  courts,  no- matter  by 
whom  proceedings  may  be  instituted  upon  them,  to  the  extent  of  the  princi- 
pal sum,  and  six  per  cent,  interest. 

[In  his  opinion,  in  this  case,  in  which  the  facts  are  fully  stated, 
the  Chancellor  says-:] 

THE  CHANCELLOR : 

This  case  though  not  very  important  with  reference  to  the 
amount  involved  in  its  decision,  is  yet  not  destitute  of  interest 
to  the  commercial  community. 

It  appears  that  some  time  in  the  month  of  April,  1848,  the 
complainants,  trading  under  the  firm  of  Gwyn  &  Company, 
placed  in  the  hands  of  George  Baughman,  of  the  firm  of  Baugh- 
man,  Nicholson  and  Cannon,  their  promissory  note  for  $1227  33, 
made  payable  to  the  last  named  firm,  dated  the  9th  of  that 
month,  and  payable  eight  months  after  date,  and,  as  the  com- 
plainants allege,  the  note  so  made  and  delivered  by  them  to 
Baughman,  was  made  and  delivered  upon  the  offer  and  agree- 
ment of  Baughman  to  procure  the  same  to  be  discounted  for 
their  use  at  some  bank  in  Baltimore. 
VOL  i—38 


446  HIGH  COURT  OF  CHANCERY. 

• 

Baughman  did  not  comply  with  this,  his  alleged  agreement, 
but,  on  the  contrary,  on  the  llth  of  September,  1848,  three 
months  before  the  maturity  of  the  note,  the  firm  of  which  he 
was  a  member  borrowed  from  the  defendant,  Lee,  twenty-one 
thousand  dollars,  and  lodged  and  hypothecated  with  him  as 
security  for  the  re-payment  of  the  money,  this  note,  with  many 
others,  a  list  of  which  is  given  in  his  answer.  Of  these  notes, 
it  appears  some  have  matured  and  remain  unpaid,  and  that 
others  have  not  yet  matured,  so  that  a  considerable  portion  of 
the  money  loaned  is  still  due. 

There  is  nothing  to  show  that  Lee,  the  defendant,  had  any 
knowledge  or  any  reason  to  suspect  when  he  received  this  note 
as  stated,  that  it  had  been  procured  by  fraud  or  misrepresenta- 
tion, or  was  without  consideration ;  and  in  his  answer  he  ex- 
pressly denies  that  he  had  any  such  knowledge  or  suspicion  ; 
and,  denying  all  belief  in  the  allegations  of  the  bill  charging 
such  fraud  and  want  of  consideration,  the  defendant  avers  him- 
self to  be  a  bona  fide  holder  of  the  note,  for  a  full  and  valuable 
consideration  and  without  notice. 

The  bill  charges,  that  the  note  was  pledged  by  Baughman, 
Nicholson  and  Cannon,  to  the  defendant,  Lee,  to  secure  the 
payment  of  a  large  sum  of  money  which  they  had  borrowed  of 
him,  and  upon  which  he  charged  and  exacted  from  said  firm, 
usurious  interest.  The  bill  does  not  allege  that  the  defendant 
knew  of  the  circumstances  under  which  the  note  was  given  to 
Baughman,  nor  does  it  charge  that  the  complainants  gave  Lee 
notice  thereof,  until  after  he  had  received  the  same  from  the 
payees  as  security  for  the  loan  made  to  them  ;  nor  is  there  any 
allegation  that  steps  were  taken  by  the  complainants,  by  publi- 
cation or  otherwise,  to  caution  the  public  against  taking  the 
note.  It  is  charged,  that  to  secure  the  money  borrowed  by 
Baughman,  Nicholson  and  Cannon,  from  the  defendant,  they 
pledged  with  him  securities  to  a  larger  amount  than  the  loan, 
and  the  bill  insists  that  Lee  is  bound,  before  he  can  proceed 
against  the  complainants  upon  their  note,  to  apply  and  exhaust 
the  other  securities. 

In  answer  to  this  charge,  the  respondent  says,  that  several  of 


GWYN  VS.  LEE.  447 

the  makers  of  the  other  notes,  pledged  to  him,  have  refused  to 
pay  them-,  and  that  some  of  them  insist  that  they  were  lent  to 
Baughman,  Nicholson  and  Cannon,  and  that  after  defendant 
is  repaid  his  loan  with  interest,  they  are  entitled  to  share  in  the 
surplus,  if  any  there  be. 

The  complainants  in  their  bill,  further  insists,  that  even  if 
the  defendant  can  hold  said  note  as  a  security  at  all,  it  can  only 
be  for  so  much  as  might  be  due  him  after  deducting  all  the  in- 
terest paid  him  by  said  firm  on  all  their  transactions,  over  and 
above  the  interest  allowed  by  law  ;  and  they  call  upon  the  de- 
fendant to  state  the  amount  of  such  excessive  interest  paid 
within  the  period  of  the  last  three  years. 

In  answer  to  this  ground  of  equity,  the  defendant  says,  that 
the  loan  already  spoken  of,  for  twenty-one  thousand  dollars, 
and  a  further  loan  to  the  same  parties  of  four  thousand  dollars, 
on  the  16th  of  August,.  1848,  and  to  secure  the  repayment  of 
which,  other  notes  were  hypothecated  with  the  defendant,  are 
the  only  two  transactions  of  business  he  has  with  Baughman, 
Nicholson  and  Cannon  ;  that  he  claims  to  hold  these  last  notes 
as  also  those  pledged  for  the  payment  of  the  $21,000  before 
mentioned,  as  security  for  the  repayment  of  the  two  sums,  prin- 
cipal and  legal  interest,  and  such  costs  and  expenses  as  he  may 
incur  by  the  resistance  of  the  makers  of  the  notes,  to  pay  the 
amount  of  their  liabilities  ;  and  denying  the  right  of  the  com- 
plainant to  interrogate  him  on  his  obligation  to  answer  to  the 
charge  of  usury,  the  defendant  says,  "he  was  always  ready  and 
willing,  and  is  now  ready  and  willing,  to  surrender  to  the  per- 
sons entitled  to  receive  the  same,  all  securities  which  he  holds, 
upon  the  payment  to  him  of  the  amount  of  Baughman,  Nichol- 
son and  Cannon's  indebtedness  to  him,  with  legal  interest 
thereon,  and  the  costs  and  expenses,"  &c.  But  he  claims  to 
hold  the  said  securities  until  he  is  so  repaid,  and  to  adopt  such 
measures  as  he  may  be  advised,  and  as  may  be  necessary  to 
recover  the  sums  due  upon  said  securities,  until  he  shall  be  re- 
imbursed his  principal,  legal  interest,  and  costs  arid  expenses. 

The  injunction  which  was  ordered  upon  the  filing  of  this  bill 
to  restrain  the  defendant,  Lee,  from  passing  away  the  note  of 


448  HIGH  COURT  OF  CHANCERY. 

the  complainants,  or  from  suing  thereon,  to  recover  the  amount 
thereof,  was  not  granted  upon  the  alleged  fraud  charged  to 
have  been  practised  by  Baughman,  upon  the  complainants  in 
obtaining  the  note  ;  because  it  was  not  charged  that  the  de- 
fendant had  any  knowledge  of  such  fraud  or  imposition,  at  the 
time  he  received  it ;  but  upon  the  ground,  as  I  understood  the 
bill,  that  it  was  pledged  with  the  defendant  to  secure  a  pre-ex- 
isting debt,  due  from  Baughraan,  Nicholson  and  Cannon  to  him, 
the  allegation  being,  that  it  was  placed  with  the  defendant  by 
those  parties,  to  secure  the  payment  of  a  large  sum  of  money 
which  they  had  borrowed  from  him  ;  which  language  was  un- 
derstood by  me  to  mean,  which  they  had  borrowed  prior  to  the 
pledge,  and,  with  that  understanding,  I  thought  he  might  not 
be  entitled  to  all  the  rights  which  attach  to  a  party  who  had 
taken  a  negotiable  security,  bona  fide,  and  without  notice,  and 
in  the  usual  course  of  business.  Story  on  Promissory  Notes, 
sec.  195,  note  1. 

If  Baughman  committed  a  fraud,  or  practiced  an  imposition 
upon  the  complainants,  that  was  a  matter  between  him  and 
them,  with  which  the  defendant,  Lee,  had  nothing  to  do,  and 
for  which  he  could  be  in  no  way  responsible,  unless  he  had 
notice  thereof  when  he  received  the  note.  Baughman  was 
trusted  by,  and  made  the  agent  of,  the  complainants,  and  if  he 
abused  their  confidence,  surely  they,  and  not  third  parties,  ig- 
norant of  the  fraud,  must  bear  the  consequences,  and  this  claim 
to  the  protection  of  the  court,  was  the  weaker,  seeing  that  after 
they  discovered  the  imposition,  they  did  not  take  the  usual  and 
proper  course  to  warn  the  public  by  advertisement,  or  in  some 
other  way. 

Unquestionably,  as  between  them  and  innocent  third  parties, 
who  might  obtain  their  note  before  its  maturity,  and  in  the 
ordinary  course  of  business,  there  could  not  be  a  doubt  as  to 
who  should  bear  the  loss. 

There  can  be  no  doubt  that  a  bona  fide  holder  of  a  negotia- 
ble instrument  for  a  valuable  consideration,  without  any  notice 
of  facts  which  affect  its  validity  as  between  the  antecedent  par- 
ties, if  he  takes  it  by  indorsement  before  it  comes  due,  acquires 


GWYN  VS.  LEE.  449 

a  valid  title,  and  may  recover  upon  it,  although,  as  between 
the  antecedent  parties,  the  transaction  may  be  invalid.  This 
is  a  doctrine,  Mr.  Justice  Story  says,  so  long  and  so  well  estab- 
lished, and  so  essential  to  the  security  of  negotiable  paper, 
that  it  is  laid  up  among  the  fundamentals  of  the  law.  And  as 
little  doubt  is  there,  that  the  holder  of  such  paper  before  it  is 
due,  is  not  bound  to  prove  that  he  is  a  bona  fide  holder  for  a 
valuable  consideration  without  notice  ;  for  the  law  will  presume 
that,  in  the  absence  of  rebutting  proofs. 

It  is  true,  if  the  other  party  has  established  the  want,  or 
failure,  or  illegality  of  the  consideration,  or  that  the  note  has 
been  lost  or  stolen,  before  it  came  to  the  possession  of  the 
holder,  it  may  then  become  incumbent  on  him,  to  show  that  he 
has  given  value  for  it ;  for,  under  such  circumstances,  he  ought 
not  to  be  placed  in  a  better  situation  than  the  prior  parties, 
through  whom  he  obtained  it.  Story  on  Promissory  Notes,  sec- 
tions 195,  196,  and  the  notes  to  those  sections. 

The  question  then,  is,  has  the  defendant,  Lee,  shown,  for  the 
purposes  of  this  motion,  that  he  has  given  value  for  this  note  ? 
The  answer  says,  speaking  responsively  to  the  bill,  that  upon 
the  security  of  this  note  before  it  became  due,  and  of  other 
notes,  a  list  of  which  is  given,  he,  at  the  time  he  received  it, 
loaned  the  holders  twenty-one  thousand  dollars,  and  that  he  is 
a  fair  and  bona  fide  holder,  for  a  full  and  valuable  consideration 
without  notice. 

The  argument  of  the  complainants'  council  is,  that  as  the 
charge  of  usury  has  not  been  answered,  it  must,  upon  this  mo- 
tion, be  assumed  to  be  true,  and  that  consequently  the  defend- 
ant cannot  be  regarded  as  a  bona  fide  holder  for  value,  and  the 
note  being  stated  in  the  bill  to  have  been  procured  by  fraud, 
which  statement  must  also,  as  it  is  said,  at  this  stage  of  the 
cause  be  treated  as  true,  the  defendant  is  in  no  better  situation 
than  the  prior  party  from  whom  he  obtained  it. 

The  defendant,  it  is  true,  does  not  deny  the  usury  charged 

against  him,  insisting  that  he  is  under  no  obligation  to  do  so, 

but  he  says  he  gave  value  for  the  note,  and  that  he  is  now  ready 

and  willing,  to  surrender  the  securities  in  his  hands,  including 

38* 


450  HIGH  COURT  OF  CHANCERY. 

this  note,  upon  the  payment  of  the  principal  sum  loaned  by  him, 
with  legal  interest,  and  his  costs. 

The  act  of  1845,  ch.  352,  has  made  a  material  change  in  the 
law  of  this  state  upon  the  subject  of  usury.  Prior  to  that  act, 
and  under  the  law  of  1704,  ch.  69,  securities  tainted  with  usury 
were  utterly  void,  and  if  the  party  lending  money  upon  usuri- 
ous interest  attempted  to  recover  it  by  legal  or  equitable  pro- 
ceedings, he  would  be  wholly  defeated,  on  the  fact  of  usury 
being  established.  Under  that  act,  however,  if  the  debtor  ap- 
plied to  chancery  for  relief,  he  would  only  be  relieved,  upon 
paying  the  principal  due,  with  the  legal  interest  thereon.  In 
other  words,  he  would  be  required  to  do  equity,  before  he  could 
ask  for  equity,  which  only  required  he  should  be  relieved  from 
the  excessive  interest. 

But  the  act  of  1845  extends  this  equitable  principle,  and  pro- 
vides, that  in  actions,  both  at  law  and  in  equity,  bought  by  the 
creditor  upon  the  usurious  instrument,  the  defendant,  the  debt- 
or, shall  be  made  to  pay  the  principal  debt,  with  interest  there- 
upon at  the  rate  of  six  per  cent,  per  annum  ;  so  that  now  usuri- 
ous instruments  are  not,  under  any  circumstances,  avoided,  but 
are  made  valid  securities  in  all  courts,  and  no  matter  by  whom 
proceedings  may  be  instituted  upon  them,  to  the  extent  of  the 
principal  sum  and  six  per  cent,  interest. 

Can  it  be  said,  then,  assuming,  for  the  sake  of  the  argument, 
that  the  defendant,  Lee,  contracted  with  Baughman,  Nicholson 
and  Cannon,  for  the  payment  of  more  than  six  per  cent,  inter- 
est, that  he  is  not  a  holder  for  value  of  this  note.  His  contract 
is  not  void,  but  is  a  good  and  valid  contract,  to  the  extent  of 
the  sum  loaned  and  six  per  cent,  interest,  and  this  is  all  he  claims. 
He  says,  and  his  answer  is  to  be  taken  as  true,  being  responsive 
to  the  bill,  that  he  gave  value  for  this  note  paid  at  the  time  he  re- 
ceived it ;  and  it  is  no  answer  to  say  that  his  contract  with  the 
parties  from  whom  he  received  it  was  usurious  ;  because,  if  true, 
that  does  not  avoid  the  contract,  which  is  a  valid  security  to  the 
extent  that  he  claims  to  recover  upon  it.  He  must,  therefore,  be 
looked  upon  as  a  holder  for  value,  and  entitled  as  such  to  avail 
himself  of  the  note,  taken  without  notice,  and  before  it  was  due, 
to  the  extent  he  claims. 


GWYN  VS.  LEE.  451 

It  may  be,  that  since  the  repeal  of  the  3d  section  of  the  act 
of  1704,  ch.  69,  which  inflicts  a  forfeiture  for  usury,  a  defend- 
ant cannot  excuse  himself  from  answering  the  charge  of  usury, 
when  the  justice  of  the  case  requires  him  to  answer.  But  when, 
as  in  this  case,  the  defendant  claims  no  more  than  his  principal 
and  legal  interest,  to  which,  under  the  act  of  1845,  ch.  352,  he 
is  entitled,  whether  he  has  contracted  for  the  payment  of  usuri- 
ous interest  or  not,  there  would  seem  to  be  no  motive  for  com- 
pelling him  to  answer,  if  he  declines  voluntarily  to  do  so.  Cui 
bono  force  him  to  answer  a  charge  which  can  have  no  influence 
upon  the  judgment  of  the  court  or  the  rights  of  the  parties. 

It  is  also  objected  by  the  complainants,  that  the  defendant 
has  not  produced  his  accounts  with  Baughraan,  Nicholson  and 
Cannon,  for  the  last  three  years  prior  to  the  time  of  filing  this 
bill ;  nor  stated  the  amount  of  excessive  interest  paid,  or  sup- 
posed to  have  been  paid,  by  them  to  him,  within  that  period. 

But  the  answer  does  give  a  statement  of  the  only  two  trans- 
actions he  has  with  those  parties  at  this  time  ;  and  I  cannot 
see  how  the  complainants  can  found  an  equity  upon  transac- 
tions passed  and  settled.  The  legality,  or  the  illegality,  of 
former  dealings  between  those  parties,  which  have  been  settled 
between  themselves,  can  have  nothing  to  do  with  the  merits  of 
this  particular  transaction,  and  are  not,  therefore,  proper  sub- 
jects of  inquiry. 

The  fate  of  this  controversy  must  depend  upon  the  consider- 
ations which  have  been  adverted  to,  and  which  affect  it  as  an 
independent  transaction;  and  it  is  to  be  determined  without 
reference  to  anterior  dealings  with  which  it  has  no  connexion. 

My  opinion,  therefore,  is,  that  the  equity  upon  which  the  in- 
junction was  granted  has  been  removed  by  the  answer,  and  it 
must,  therefore,  be  dissolved. 

[The  order  in  this  case  was  affirmed,  on  appeal  to  the  Court 
of  Appeals.] 


452  HIGH  COURT  OF  CHANCERY. 


CATHARINE  BOWIE  } 

vs.  >-     JULY  TERM,  1849. 

JOHN  T.  BERRY.     3 

[DOWER.] 


WHERE  a  husband  alienes  land  in  his  lifetime,  in  which  the  wife  refuses  to  re- 
linquish her  dower  right,  in  assigning  the  wife  a  compensation  in  money  in 
lieu  of  her  dower,  the  value  of  the  land  at  the  time  of  the  death  of  the  hus- 
band is  to  be  regarded,  and  not  its  value  at  the  time  of  the  alienation,  unless 
its  increased  value  has  arisen  from  the  labor  and  money  of  the  alienee. 

The  improved  value  of  the  land,  from  which  the  widow  is  to  be  excluded  in 
the  assignment  of  her  dower,  as  against  a  purchaser  from  her  husband,  is 
that  which  has  arisen  from  the  actual  labor  and  money  of  the  owner,  and 
not  from  that  which  has  arisen  from  extrinsic  or  general  causes. 

Where  the  husband  holds  only  the  equitable  title,  and  parts  with  it  in  his  life- 
time, the  widow  shall  not  be  allowed  dower. 


[The  bill  in  this  case  alleges,  that  the  late  Robert  W.  Bowie, 
the  husband  of  the  complainant,  on  the  1st  of  September, 
1832,  and  during  the  coverture,  purchased  a  tract  of  land  called 
"Brookfield,"  and  took  a  bond  of  conveyance  therefor,  with 
condition  to  convey  the  legal  title  upon  the  payment  of  the  pur- 
chase money  ;  and  that,  subsequently,  on  the  25th  of  Novem- 
ber, 1843,  the  legal  title,  in  fee,  was  conveyed  to  him,  and  the 
bond  and  deed  are  filed  as  exhibits  with  the  bill. 

It  further  alleges,  that  some  time  in  the  year  1839,  the  said 
Bowie,  having  previously  sold  and  conveyed  a  small  portion  of 
said  land  to  another  person,  sold  the  residue  thereof  to  the 
defendant,  John  T.  Berry,  for  about  the  sum  of  thirty  thousand 
dollars,  and,  as  complainant  is  informed,  executed  to  him  a 
bond  of  conveyance,  with  condition,  upon  the  payment  of  the 
purchase  money,  to  convey  him  a  title  free  of  incumbrances  ; 
but  the  bill  alleges  that  the  complainant  is  ignorant  of  the  con- 
dition of  the  bond  given  by  her  husband,  as  she  had  always 
refused  to  relinquish  her  right  of  dower  in  the  land  so  sold  to 
Berry ;  and  insisting  that  she  is  entitled  to  dower  therein,  the 
bill  prays  that  it  may  be  assigned  to  her  in  the  usual  way,  by 
the  decree  of  this  court,  or  that  said  Berry  may  be  compelled 


BOWIE  VS.  BERRY.  453 

to  pay  her  such  proportion  of  the  purchase  money,  as  she  may, 
under  the  rule  of  this  court,  be  entitled  to  receive,  in  lieu  of 
her  dower  in  the  land,  with  interest  thereon,  from  the  death  of 
her  husband. 

The  answer  admits  that  the  legal  title  was  acquired  by  the 
said  Robert  W.  Bowie,  by  the  deed  of  November,  1843,  but 
insists  that  said  Bowie,  prior  thereto,  and  whilst  he  had  only 
contracted  to  purchase  said  land,  and  to  pay  therefor  a  large 
sura  of  money,  contracted  to  sell  the  same  to  the  defendant 
free  and  clear  of  all  incumbrances,  and  alleges  that,  in  pursu- 
ance of  said  contract,  he,  the  defendant,  made  large  payments 
to  said  Bowie,  which  payments,  or  a  large  portion  thereof, 
were  applied  by  him  to  the  obtention  of  the  legal  title. 

It  further  alleges,  that  Bowie  died  insolvent,  having  failed  to 
obtain  a  release  of  the  dower  right  of  the  complainant,  which, 
if  not  relieved  against,  will  constitute  an  incumbrance  on 
said  land  ;  and,  that,  therefore,  the  defendant  is  entitled  to 
compensation  and  reimbursement  for  so  much  of  his  payments 
to  said  Bowie  as  were  applied  as  aforesaid,  and  that  from  the 
value  of  the  complainant's  dower  interest,  if  she  shall  be  de- 
creed to  have  such  interest  in  this  land,  the  said  payments  are 
to  be  deducted. 

The  case  was  submitted  for  hearing  by  the  complainant's 
solicitor,  on  bill  and  answer,  during  the  sittings  of  July  terra, 
1849,  and  was,  during  the  sittings,  argued  by  him,  no  one  ap- 
pearing for  the  defendant,  and  was,  at  the  end  of  the  sittings, 
submitted  for  decree  or  order.  Upon  which  submission  the 
Chancellor  said  :] 

THE  CHANCELLOR : 

It  does  not  appear  when  Mr.  Bowie  died,  nor  what  is  the 
age  and  condition  of  health  of  his  widow  ;  and,  therefore,  an 
order  fixing  the  proportion  of  the  money  to  which  she  may  be 
entitled  in  lieu  of  dower,  could  not  be  passed. 

The  bill  prays  either  for  an  assignment  of  dower,  or  an 
equivalent  therefor  in  money  ;  but  this  equivalent  it  is  proposed 
to  regulate  by  the  amount  which  Berry,  the  defendant,  agreed 


454  HIGH  COURT  OF    CHANCERY. 

to  give  for  the  land  in  1839,  which  is  stated  to  have  been 
about  thirty  thousand  dollars. 

My  opinion,  however,  is,  that  this  is  not  the  true  standard. 
The  land  may  have  appreciated  or  depreciated  in  value  very 
much,  between  the  purchase  by  Berry,  and  the  death  of  the 
complainant's  husband  ;  and  it  is  the  value  of  the  land  at  the 
time  of  the  death,  which  is  to  be  regarded,  and  not  its  value  at 
the  time  of  the  alienation,  unless  its  increased  value  has  arisen 
from  the  labor  and  money  of  the  owner. 

After  examining  the  authorities  upon  this  question,  Chan- 
cellor Kent  comes  to  the  conclusion,  "that  the  improved  value 
of  the  land,  from  which  the  widow  is  to  be  excluded  in  the  as- 
signment of  her  dower,  as  against  a  purchaser  from  her  hus- 
band, is,  that  which  has  arisen  from  the  actual  labor  and  money 
of  the  owner,  and  not  from  that  which  has  arisen  from  extrinsic 
or  general  causes."  4  Kent's  Com.,  68. 

But  the  answer  in  this  case  takes  the  ground,  that  as  Mr. 
Bowie  had  but  an  equitable  title  to  this  land  when  he  sold  to 
the  defendant,  he  is  entitled,  upon  the  condition  of  the  bond  of 
conveyance,  to  give  him  a  clear  title,  to  have  the  payments 
made  by  him  to  Bowie,  and  which  were  applied  by  the  latter  to 
the  obtention  of  the  legal  title  set  off  or  discounted  from  the 
complainant's  claim  to  dower. 

If  Mr.  Bowie,  while  he  held  but  an  equitable  title,  had  sold 
and  transferred  that  title  to  the  defendant,  the  claim  of  dower 
could  not  be  supported,  it  having  been  decided  by  the  Court  of 
Appeals,  that  if  the  equitable  title  is  parted  with  by  the  husband 
in  his  lifetime,  the  widow  shall  not  be  allowed  dower.  Miller 
vs.  Stump,  3  Gill,  304. 

But  this  was  not  done ;  on  the  contrary,  Mr.  Bowie,  four 
years  after  he  contracted  to  sell  the  land  to  the  defendant,  took 
the  deed  from  his  vendors  to  himself,  because  the  defendant  had 
not  then  paid  the  purchase  money,  a  part  of  which,  it  is  under- 
stood, is  even  yet  due. 

This  is  the  case,  then,  of  a  husband  dying  seized  of  the  legal 
title ;  and,  therefore,  it  would  seem  that  the  dower  claim  can- 
not be  defeated,  either  directly  or  indirectly,  in  the  mode  pro- 


PFELTZ  VS.    PFELTZ.  455 

posed  by  this  answer.  It  is  possible  a  different  view  might 
have  been  taken  of  the  subject  in  a  court  of  equity,  if,  during 
the  life  of  Mr.  Bowie,  the  defendant  had  put  himself  in  a  con- 
dition to  demand  a  conveyance  of  the  title,  by  paying  all  the 
purchase  money  he  had  contracted  to  pay. 

I  am  not  sure,  however,  that  the  value  of  the  thing  out  of 
which  the  dower  is  claimed,  should  not  be  diminished  by  the 
amount  of  the  sums  paid  by  the  defendant  to  Mr.  Bowie,  in  his 
lifetime,  and  by  him  applied  to  the  payment  of  the  land ;  and 
as  the  case  has  not  been  argued  on  the  part  of  the  defendant, 
that  point  will  not  now  be  decided ;  but  the  case  sent  to  the 
Auditor,  to  report  such  accounts  as  will  enable  the  court  to  de- 
termine the  question  hereafter. 

[This  order  was  not  appealed  from.] 


JULIUS   PETER   PFELTZ 

vs.  S.     JULY  TERM,  1849. 

ANN  MARIA  PFELTZ  ET  AL._S 

[CHANCERY  PRACTICE — VACATING  ENROLLED  DECREE — BILL  OF  REVIEW.] 

A  DECREE  is  considered  as  enrolled,  when  signed  by  the  Chancellor,  filed  by  the 
Register,  and  the  term  elapsed  at  which  it  was  made  ;  and  such  decree  can- 
not be  reheard  upon  petition. 

Every  decree  stands,  and  must  be  allowed  to  stand,  for  what  it  purports  to  be 
on  its  face,  until  it  has  been  revised,  or  reversed,  in  a  proper  and  solemn 
manner. 

A  decree  passed  for  the  sale  of  property,  for  the  purpose  of  partition  among 
the  parties  to  the  cause.  After  enrollment  of  this  decree,  a  petition  was 
filed  by  one  of  the  parties,  setting  up  an  exclusive  right  to  the  whole  proceeds 
of  sale.  HELD — 

That  as  the  decree  contained  no  reservation  of  equities,  or  for  further  direc- 
tions, it  was  of  course  final  upon  the  rights  of  the  parties,  and  that  this  court 
upon  such  petition,  had  no  more  power  to  change  the  rights  thus  settled,  than 
it  would  have  to  open  the  enrollment,  and  vacate  the  decree. 

When  a  decree  is  obtained  and  enrolled,  though  on  a  bill  taken  pro  confesso,  it 
cannot  be  reheard  on  petition,  and  the  remedy  of  the  party  grieved,  is  by  a 
bill  to  set  aside  the  decree  for  fraud,  or  a  bill  of  review,  which  only  lies 
against  those  who  were  parties  to  the  original  bill. 


456  HIGH  COURT  OF  CHANCERY. 

A  bill  of  review  founded  on  new  matter  discovered  since  the  decree,  cannot  be 
filed  without  leave,  and  the  granting  this  leave,  is  left  to  the  sound  discretion 
of  the  court,  arising  out  of  the  circumstances  of  each  case. 

The  limitation  of  time,  as  to  appeals  from  the  decrees  of  the  court,  applies  to 
the  right  of  filing  bills  of  review,  and  such  a  bill,  filed  nine  months  after  the 
date  of  the  decree,  comes  too  late. 

[The  facts  in  this  case  are  stated  in  the  Chancellor's  opinion,] 

THE  CHANCELLOR: 

In  this  case  a  bill  was  filed  by  Ann  Maria  Pfeltz  and  George 
C.  Pfeltz,  on  the  4th  of  April,  1845,  alleging  that  Charles  William 
Pfeltz,  the  husband  of  the  female  complainant,  died  in  the  year 
1837,  intestate,  and  seized  in  fee  of  certain  parcels  of  land  in 
Baltimore  county,  leaving  the  said  Ann  Maria,  his  widow,  and 
five  children,  his  heirs  at  law,  among  them  the  complainant 
George,  and  Peter  Pfeltz,  the  same  person  now  called  Julius 
Peter  Pfeltz,  and  the  bill  to  which  the  heirs  at  law  were  made 
parties,  prayed  for  a  sale  of  the  property,  or  that  the  female 
complainant  might  be  let  into  the  receipt  of  one-third  of  the 
rents  and  profits,  &c. 

The  defendants  being  summoned,  and  not  having  appeared 
or  answered,  an  interlocutory  decree  against  them  passed  on 
the  28th  of  October,  1845,  and  the  case  being  proved  under  an 
exparte  commission,  a  final  decree  passed  on  the  llth  of  July, 
1846,  directing  a  sale  of  this  property  for  the  purpose  of  parti- 
tion. The  sale  was  made  accordingly,  and  finally  ratified  and 
confirmed  on  the  3d  of  November,  1846. 

Afterwards,  to  wit,  on  the  19th  of  October,  1847,  Julius 
Peter  Pfeltz,  one  of  the  defendants  to  the  bill,  filed  his  petition 
in  the  cause,  claiming  the  said  lands  as  his  own  individual 
property,  under  a  deed  which  he  alleges  was  made  by  his  father, 
in  April,  1832,  to  one  Job  Smith,  in  trust  for  him  and  his 
children,  and  insisting,  that  the  whole  of  the  net  proceeds  of 
the  sales  should  be  paid  to  him,  after  deducting  a  reasonable 
allowance  to  the  widow  for  dower. 

The  petition  was  subsequently  amended,  by  making  the 
children  of  the  petitioner  parties,  and  praying  that  the  proceeds 


PFELTZ  VS.  PFELTZ.  457 

of  the  sales,  after  deducting  the  value  of  the  dower,  should  be 
invested  for  the  use  of  the  petitioner  for  life,  and,  after  his  death, 
for  the  benefit  of  his  children,  according  to  the  provisions  of  the 
said  trust  deed. 

This  is  the  case,  then,  of  an  application  by  petition,  to  open 
and  revise  a  decree,  after  the  term  has  passed  at  which  it  was 
made.  The  decree  passed  before  the  commencement  of  the 
sittings  of  the  July  term,  1846,  and,  consequently,  that  term, 
and  the  then  ensuing  September  and  December  terms  had 
closed,  before  the  petition  was  filed  ;  and  a  preliminary  question 
presents  itself,  as  to  the  power  of  this  court,  upon  petition,  to 
rehear  the  matters  settled  by  the  decree. 

In  Burch  et  al.  vs.  Scott,  1  G.  fy  J.,  393,  the  Court  of  Ap- 
peals decided,  that  a  decree  signed  and  enrolled,  could  not  be 
reheard  upon  petition,  and  that  a  decree  would  be  considered 
as  enrolled,  when  signed  by  the  Chancellor,  filed  by  the  Regis- 
ter, and  the  term  had  elapsed  at  which  it  was  made. 

This  decree,  then,  is  to  be  regarded  as  enrolled  ;  and  it  is 
clear,  that  if  an  application  were  made,  by  petition,  to  open 
the  enrollment  and  vacate  the  decree,  it  must  be  refused. 

It  may  be  said,  however,  that  this  is  not  an  application  to 
vacate  the  decree,  but  to  give  the  fruits  of  it  a  different  direc- 
tion from  that  which,  upon  the  proceedings  as  they  stood  at 
the  time  it  passed,  they  would  take ;  that  is,  that  instead  of 
distributing  the  proceeds  of  the  sale  among  the  parties,  accord- 
ing to  their  rights  and  interests  as  displayed  upon  the  face  of 
the  proceedings,  the  whole  amount  shall  be  given  to  one  of 
those  parties  for  life,  with  remainder  to  persons  who  were  not 
parties  to  the  decree. 

But  the  decree  contained  no  reservation  of  equities,  or  for 
further  directions,  and  was  of  course  final  upon  the  rights  of 
the  parties,  and  this  court,  therefore,  in  this  way,  has  no  more 
power  to  change  the  rights  thus  settled,  than  it  would  have  to 
open  the  enrollment  and  vacate  the  decree.  2  DanieWs  Ch.  Pr., 
1199. 

In  Estep  vs.  Watkins,  1   Bland,  489,  the  late   Chancellor 
said,  "every  decree  stands,  and  must  be  allowed  to  stand,  for 
VOL.  i—39 


458  HIGH   COURT  OF  CHANCERY. 

what  it  purports  to  be  on  its  face,  until  it  has  been  revised  or 
reversed  in  a  proper  and  solemn  manner."  And  as  the  decree 
in  this  case  purports  upon  its  face  to  be  a  decree  for  the  pur- 
pose of  making  partition  among  the  parties  to  the  cause,  it  will 
not  be  allowed  to  stand  as  such,  if  the  proceeds  of  the  sale  are 
now  taken  from  them  and  given  to  others. 

When  a  decree  is  obtained  and  enrolled,  though  on  a  bill 
taken  pro  confesso,  and  requires  explanation,  it  cannot  be  re- 
heard on  petition,  and  the  remedy  of  the  party  grieved  is  by  a 
bill  to  set  aside  the  decree  for  fraud,  or  a  bill  of  review  which 
only  lies  against  those  who  were  parties  to  the  original  bill.  2 
Mad.  CJi.  Pr.,  537. 

This  petition  certainly  cannot  be  maintained  as  a  bill  of  re- 
view, either  for  error  apparent  on  the  face  of  the  decree,  or 
upon  some  new  matter  discovered  since.  Upon  the  face  of  the 
decree  there  is  no  error,  and  the  petition  does  not  profess  to  be 
founded  upon  new  matter  discovered  since  ;  nor  has  the  leave 
of  the  court  been  obtained  to  file  it ;  which  is  indispensable, 
regarding  it  as  a  bill  founded  upon  new  matter  discovered  since 
the  decree.  2  Mad.  Ch.  Pr.,  538 ;  Burch  et  al.  vs.  Scott,  1  G. 
#  J.,  125. 

And  it  may  very  well  be  doubted,  whether,  if  the  leave  of 
the  court  had  been  asked  for,  to  file  a  bill  of  review,  upon  new- 
ly discovered  matter,  it  would  have  been  granted ;  the  inter- 
ference of  the  court  to  relieve  a  party  from  the  consequences  of 
his  default  depending  upon  sound  discretion,  arising  out  of  the 
circumstances  of  the  case.  Wooster  vs.  Woodhull,  1  Johns.  Ch. 
Rep.,  541 ;  Burch  vs.  Scott,  1  G.  $  J.,  426. 

The  circumstances  of  this  case  are  not  such  as  to  enlist  the 
favorable  consideration  of  the  court,  or  to  entitle  the  petitioner 
to  be  relieved  from  the  consequences  of  his  neglect.  He  states, 
"that  he  was  served  with  a  subpena  from  the  court,  issued 
against  him  by  the  name  of  Peter  Pfeltz,  to  appear  in  said  court 
in  said  cause,  upon  which  he  inquired  of  the  said  Ann  Maria, 
for  what  purpose  he  had  been  served  with  a  subpena  from  chan- 
cery, at  her  suit ;  when  she  informed  him  the  proceeding  in 
said  suit  was  stopped,  which  induced  him  not  to  attend  to  the 
cause,  which  he  would  otherwise  have  done." 


HAYDEN  VS.  STEWART.  459 

In  answer  to  this  part  of  the  petition,  Ann  Maria  Pfeltz  says, 
"she  denies  positively  that  she  ever  told  the  petitioner  that  the 
proceedings  in  the  said  suit  were  stopped  or  stayed,  or  other- 
wise led  him  into  error  in  regard  to  the  proceedings  ;"  and  no 
proof  is  produced  to  show  that  she  did  mislead  him  upon  the 
subject. 

It  seems  to  me,  adopting  the  language  of  the  Court  of  Ap- 
peals, "that  if  upon  the  application  of  this  party,  thus  guilty  of 
disregarding  the  process  of  the  court,  its  decrees  are  to  be  re- 
vised and  changed,  a  lax  principle  of  practice  will  be  establish- 
ed, which  will  be  productive  of  the  most  serious  consequences 
in  the  administration  of  equitable  jurisprudence." 

There  is  another  insuperable  objection  to  entertaining  this 
petition,  supposing  it  may  assume  the  character  of  a  bill  of  re- 
view, and  that  is,  that  it  was  filed  more  than  nine  months  from 
the  date  of  the  decree  ;  it  having  been  settled  by  the  Court  of 
Appeals,  that  the  limitation  of  time  as  to  appeals  from  the  de- 
crees of  the  court  applies  to  the  right  of  filing  bills  of  review. 
Berrett  vs.  Oliver,  7  G.  #/.,  207. 

The  children  of  Julius  Peter  Pfeltz  were  not  parties  to  the 
bill  upon  which  the  decree  passed,  and  are  of  course  not  bound 
by  it.  Their  rights  are,  therefore,  supposed  to  be  unaffected  ; 
but  the  father,  the  petitioner,  was,  and  his  petition,  for  the  rea- 
sons stated,  must  be  dismissed. 


DEN    -^ 
\Ja.  S 


HANDEL  M.  HAYDEN 

vs.  $.     JULY  TERM,  1849. 

DAVID  STEWART, 


[JUDGMENT — LIEN  OF.] 

A  JUDGMENT  rendered  in  any  one  of  the  county  courts  in  this  state  is  not  a  lien 
upon  lands  lying  in  another  county,  until  the  plaintiff,  in  the  mode  pointed 
out  by  the  acts  of  1794,  ch.  54,  and  1795,  ch.  24,  has  transferred  his  judgment 
to  such  other  county. 

Judgments,  when  liens  at  all,  are  general  Hens  upon  all  the  lands  of  the  defend- 
ant, continuing  for  twelve  years,  and  fasten  as  well  upon  those  lands  which 
the  defendant  held  at  the  time  of  their  rendition,  as  upon  those  subsequently 
acquired. 


460  HIGH  COURT  OF  CHANCERY. 

[The  facts  in  this  case  are  stated  in  the  Chancellor's  opinion.] 

THE  CHANCELLOR: 

The  question  now  to  be  decided,  upon  the  petitions  of  the 
Farmers'  Bank  of  Maryland,  and  the  answers  thereto,  relates 
to  the  disposition  of  the  sura  of  $1,538  13,  paid  into  court 
under  the  order  of  the  25th  of  June  last. 

It  appears,  that  on  the  llth  of  September,  1848,  the  bank 
recovered  judgments  against  Stewart,  upon  his  acceptances, 
which  it  had  discounted.  The  judgments  were  recovered  in 
Baltimore,  the  place  of  Stewart's  residence,  and  executions  is- 
sued upon  them  to  May  term,  1849,  of  the  County  Court,  were 
returned  nulla  bona,  by  the  sheriff. 

Prior  to  this,  to  wit,  on  the  18th  of  March,  1848,  the  decree 
in  this  case  passed  for  the  sale  of  certain  real  estate,  situate  in 
Anne  Arundel  county,  which  had  been  mortgaged  by  the  de- 
fendant, Stewart,  to  the  complainant,  to  secure  the  payment  of 
a  debt  due  him.  A  sale  under  this  decree  was  made  on  the 
22d  of  June  following,  which,  by  consent  of  parties,  was  rati- 
fied on  the  2d  of  the  then  ensuing  month  of  October.  After 
satisfying  the  claim  of  the  mortgagee,  and  the  expenses  of  the 
suit,  there  remained  a  surplus  of  $2,521  73,  which  was,  by  the 
report  of  the  Auditor,  assigned  to  the  mortgagor,  and  this  report 
was  on  the  lltb  of  the  same  month  and  year  ratified,  and  the 
proceeds,  in  the  usual  form,  directed  to  be  applied  by  the  trus- 
tee accordingly. 

On  the  16th  of  March,  1849,  the  bank  filed  a  petition  in  the 
cause,  in  which,  exhibiting  its  judgments  and  the  proceedings 
upon  them,  and  alleging  that  Stewart  had  no  other  property  in 
the  county  of  Baltimore  or  elsewhere,  and  insisting  that  their 
judgments  were  to  be  regarded  as  liens  upon  the  surplus  pro- 
ceeds of  sale  assigned  to  Stewart,  which  was  to  be  treated  as 
real  estate,  they  pray  that  the  said  surplus  may  be  so  applied, 
and  in  the  meantime,  and  until  the  matter  can  be  heard  and 
decided,  that  Stewart  may,  by  injunction,  be  restrained  from 
transferring  or  assigning  the  same,  and  that  the  trustee  may  be 
required  to  pay  the  money  into  court. 


HAYDEN  VS.  STEWART.  461 

An  order  passed  upon  this  petition,  for  an  injunction,  as 
prayed  against  Stewart,  and  that  the  trustee  or  purchaser  should 
pay  the  money  assigned  to  Stewart  into  court,  or  show  cause 
by  a  limited  day. 

On  the  25th  of  June  last,  another  petition  was  filed  by  the 
bank,  in  which,  after  explaining  the  reason  for  failing  to  serve 
copies  of  .the  former  one,  according  to  the  order,  it  is  stated 
that  the  purchaser  is  prepared  to  pay  the  second  installment  of 
the  purchase  money,  but  as  his  obligation  given  to  the  trustee 
for  it  had  been  sent  to  the  petitioner  for  collection,  the  purchas- 
er was  in  doubt  whether  he  could  with  safety  pay  the  money, 
without  the  express  authority  of  the  court  in  the  premises. 

This  petition  alleges,  that  the  persons  who  pretend  to.  hold 
this  obligation  as  transferred  to  them  knew,  or  might  have 
known,  of  the  rights  of  the  petitioner  ;  and  the  petition  denies 
that  the  transfer  was  made  for  a  valuable  consideration,  and 
without  notice,  and  insists  that  the  object  was  to  secure  the  use 
of  said  bond  for  the  defendant,  Stewart. 

The  bond  of  the  purchaser,  a  copy  of  which  was  filed  with 
this  petition,  is  dated  the  22d  of  June,  1848,  made  payable 
twelve  months  after  date,  for  $1,450  40,  with  interest  from 
date,  and  is  indorsed  by  the  trustee  and  B.  M.  Heighe,  attor- 
ney, and  the  cashier  of  a  bank  in  Baltimore,  with  whom  it  had 
been  placed  by  Mr.  Heighe  for  collection. 

Mr.  Heighe  states  in  his  answer,  that  this  bond  was  assigned 
to  him  in  April,  1847,  under  an  order  from  Stewart  to  the  trus- 
tee, to  pay  him,  Heighe,  §1,500,  out  of  the  proceeds  of  the 
sale.  The  assignment  was,  he  swears,  made  in  April,  1848, 
and  the  respondent  swears,  that  he  purchased  the  bond  for  a 
valuable  consideration,  and  without  notice,  and  that  it  was  trans- 
ferred to  him  by  the  trustee,  soon  after  he  received  it  from  the 
purchaser,  under  the  authority  of  the  order  of  Stewart,  for 
$1,500,  the  balance  thereof  being  paid  in  cash;  and  the  res- 
pondent denies  that  when  he  received  it,  he  knew  of  any  fact 
or  circumstance  which  could  invalidate,  in  any  way,  his  right 
to  the  money. 

The  judgments  of  the  bank  were  recovered  on  the  llth  of 
39* 


462  HIGH  COURT  OF  CHANCERY. 

September,  1848,  and  as  the  trustee's  report  of  the  sale  was  not 
ratified  until  the  2d  of  October  following,  the  mutation  from 
real  to- personal  estate  was  not  complete  at  the  former  period, 
and,  therefore,  independently  of  the  views  presented  by.  the 
counsel  for  the  bank,  it  must  be  regarded  as  having  had  the 
character  of  real  estate  when  the  judgments  were  rendered. 
Leadenham  vs.  Nicholson,  1  H.  fy  G.,  266. 

But  these  judgments  were  not  rendered  in  the  county  in 
which  the  land  lay,  and  the  very  important  question  is  present- 
ed as  to  the  effect  of  a  judgment  under  such  circumstances. 
Whether  a  judgment  rendered  in  one  county  is  a  lien  on  land 
lying  in  another,  is  a  question  of  great  practical  importance, 
and  it  is  to  be  regretted  that  no  cause  has  yet  arisen  in  which 
the  Court  of  Appeals  has  been  called  upon  to  put  it  at  rest. 

In  the  case  of  Cape  Sable  Company,  (3  Bland,  606,)  the 
late  Chancellor  decided  that  the  judgments  and  decrees  of  the 
County  Courts,  the  Court  of  Chancery  and  the  Court  of  Appeals, 
gave  a  lien  upon  the  lands  of  the  defendant  every  where  in  the 
state  ;  and  if  this  is  to  be  regarded  as  settling  the  law  upon 
the  subject,  no  farther  examination  of  it  need  be  made. 

The  doctrine  of  the  Chancellor  in  the  same  case,  with  regard 
to  the  lien  of  a  judgment  on  real  estate,  being  but  an  incident 
of  its  liability  to  be  taken  in  execution,  and  that  there  can  be  no 
lien  where  there  is  no  direct  or  indirect  mode  of  having  an  ex- 
ecution founded  on  such  judgment,  has  been,  as  was  conceded 
in  the  argument,  overruled  by  the  Court  of  Appeals,  and  can, 
of  course,  no  longer  be  considered  as  the  sound  doctrine  upon 
that  subject. 

The  authority  of  the  case,  therefore,  is  weakened,  and  it  ap- 
pears to  me,  that  so  much  mischief  and  inconvenience  would 
result  from  following  the  decision  upon  the  other  point,  that  I 
am  not  prepared  to  give  my  assent  to  it.  The  difficulties 
already  existing  in  the  examination  of  titles  are,  I  think,  suf- 
ficiently perplexing,  but  it  is  manifest  they  would  be  aggravat- 
ed to  a  most  alarming  extent,  if  the  doctrine  contended  for  is 
to  prevail. 

The  9th  section  of  the  act  of  1794,  chap.  54,  authorizes  the 


HAYDEN  VS.  STEWART.  463 

county  courts,  upon  the  application  of  a  plaintiff  in  a  judgment 
upon  the  return  of  a  nulla  bona,  on  a  fieri  facias ,  issued  in  the 
county  where  the  judgment  was  obtained,  to  issue  executions 
on  such  judgments,  against  the  goods,  chattels,  lands  and  tene- 
ments of  the  defendant,  lying  and  being  in  other  counties  ;  and 
upon  an  attested  short  copy  of  the  judgment,  the  execution  may 
be  renewed  from  time  to  time,  out  of  the  County  Court  to  which 
the  original  execution  shall  have  been  removed,  as  authorized 
by  the  act  of  1795,  chap.  24,  in  like  manner  as  if  the  judgment 
in  such  case  had  been  rendered  therein. 

When  a  judgment  has  been  thus  transferred,  and  become  in 
effect  a  judgment  of  the  county  court  to  which  the  execution 
and  short  copy  is  sent,  it  seems  to  me  it  should,  from  that  time, 
have  all  the  incidents  and  qualities  of  a  judgment  rendered  in 
the  latter  court,  and  of  course  be  a  lien  on  the  lands  of  the  de- 
fendant. But  if  the  lien  of  a  judgment  of  one  of  the  county 
courts  of  the  state  is,  as  said  by  the  late  Chancellor,  a  lien  upon 
the  lands  of  the  defendant  everywhere  within  the  state,  then  it 
would  follow,  that  if  land  is  sold  in  any  one  county,  upon  a 
judgment  rendered  in  that  county,  a  prior  judgment  existing  in 
a  different  county  against  the  same  defendant,  the  purchaser 
would  be  disturbed  in  his  title  by  such  proceedings  on  the  prior 
judgment  as  are  authorized  by  the  acts  of  assembly  which  have 
been  referred  to  ;  and,  consequently,  no  one  would  be  safe  in 
buying  land  at  sheriff's  sale,  without  an  examination  of  the  re- 
cords of  every  county  court  in  the  state  ;  for,  as  has  been  re- 
marked, the  privilege  of  being  sued  only  in  the  county  of  one's 
residence  is  a  privilege  which  may  be,  and  is,  sometimes  waved. 

It  appears  to  me,  that  the  decision  to  which  the  late  Chan- 
cellor came,  in  the  case  of  the  Cape  Sable  Company,  is  in  con- 
flict with  the  policy  of  our  laws  upon  such  subjects.  The  re- 
gistry acts  all  require  that  the  deed,  or  instrument  creating  the 
incumbrance  on  real  estate,  shall  be  recorded  in  the  county 
in  which  it  is  situate,  for  the  very  purpose  of  facilitating  the 
investigation  of  titles,  and  for  the  security  of  purchasers ;  and 
the  policy  which  dictated  this  regulation  would  seem  to  apply 
with  peculiar  force  to  judgments,  which  if  liens  at  all,  are  gen- 


464  HIGH  COURT  OF  CHANCERY. 

eral  liens  upon  all  the  land  of  the  defendants,  continuing  for 
twelve  years,  and  fastening  as  well  upon  those  lands  which  the 
defendant  held  at  the  time  of  the  rendition  of  the  judgment,  as 
those  subsequently  acquired.  Murphy  vs.  McCord,  12  G.  #  J-, 
182  ;  Coombs  vs.  Jordan,  3  Bland,  284 ;  &tow  vs.  Tift,  15, 
Johns.  Rep.,  458,  464. 

In  the  case  of  the  Cape  Sable  Company,  the  lien  was  con- 
sidered as  being  dependent  upon,  and  limited  by,  the  right  of 
the  creditor  to  sue  out  execution  upon  his  judgment,  and  con- 
sequently did  not  exist  during  the  suspension  of  the  right  to 
execute,  from  lapse  of  time,  or  other  cause ;  and  yet,  judg- 
ments were  pronounced  to  be  liens  from  their  date,  upon  all  the 
lands  of  the  defendant,  wherever  situated,  though  with  respect 
to  lands  lying  in  a  different  county,  and  execution  could  not  be 
taken  out  until  a  previous  fieri  facias  had  been  issued,  and  re- 
turned nulla  bona  to  the  County  Court  in  which  the  judgment 
was  rendered.  If,  upon  the  reasoning  of  the  Chancellor,  the 
lien  was  only  commensurate  with  the  right  to  take  out  execution 
then,  in  the  case  of  lands  lying  in  a  different  county  from  that 
in  which  the  judgment  was  rendered,  the  lien  should  have  been 
postponed,  until  the  preliminary  proceedings  necessary  to  give 
the  right  to  send  an  execution  out  of  the  county  had  been  ta- 
ken ;  and  yet  the  Chancellor  says,  "all  lands,  wherever  they 
may  be,  within  any  one  of  the  counties  of  the  state,  are  bound 
by  the  lien,  which  fastens  upon  them  from  the  date  of  the  judg- 
ment rendered  in  the  County  Court." 

This  doctrine  of  the  Chancellor  in  the  Cape  Sable  case  has, 
it  is  admitted,  so  far  as  it  asserts  that  the  lien  of  a  judgment  is 
restricted  by  the  right  to  take  out  execution  upon  it,  been  re- 
versed by  the  Court  of  Appeals,  and,  therefore,  it  does  not  fol- 
low, that,  because  the  immediate  right  to  send  a  fieri  facias  out 
of  the  county  in  which  the  judgment  was  obtained  does  not 
exist,  the  lien  is  suspended,  and  the  object  in  referring  to  the 
reasoning  is  simply  to  show  that  there  is  an  apparent  inconsist- 
ency in  saying  that  the  lien  is  limited  by  the  right  to  execute, 
and  yet  the  lien  attaches  before  the  right  which  gives  it  has 
come  into  being. 


HAYDEN  VS.  STEWART.  465 

My  opinion,  therefore,  is,  upon  this  question,  that  a  judg- 
ment rendered  in  any  one  of  the  county  courts  in  this  state,  is 
not  alien  upon  lands  lying  in  another,  until  the  plaintiff,  in  the 
mode  pointed  out  in  the  Acts  of  Assembly  referred  to,  has 
transferred  his  judgment  to  such  other  county;  and  that,  con- 
sequently, the  bank  in  this  case  has  no  such  lien  upon  the  fund 
in  question  as  can  interfere  with  the  right  of  the  assignee, 
Heighe,  to  the  proceeds  of  the  bond  now  in  court. 

It  is  said,  however,  that  the  assignee  has  not  stated,  in  his 
answer  to  the  petition,  how  much  he  paid  or  advanced  for  the 
bond,  and  that  it  may  be  he  gave  a  very  inadequate  sum  for  it. 
The  answer,  however,  will  be  found  to  be  strictly  responsive 
to  the  allegation  of  the  petition  in  this  respect.  The  averment 
is,  that  the  transfer  was  not  made  bona  fide,  and  for  a  valuable 
consideration,  without  notice  ;  in  response  to  which,  Heighe 
says,  he  purchased  the  bond  bona  fide,  and  for  a  valuable  con- 
sideration, without  notice  of  any  fact  or  circumstance  which 
could  in  any  way  invalidate  his  right  to  the  money.  The  as- 
signee was  not  called  upon  to  disclose  the  amount  which  he 
paid  as  the  consideration  of  the  assignment,  and,  therefore,  a 
general  denial  of  the  allegation  that  he  was  not  a  purchaser  for 
value,  and  without  notice,  must  be  sufficient. 

An  order  will  therefore  be  passed,  directing  the  proceeds  of 
this  particular  note  to  be  paid  to  the  assignee,  Heighe,  and  for 
the  dismissal  of  the  petitions  as  to  him. 

It  does  not  follow,  however,  that  the  petitions  of  the  bank 
are  to  be  dismissed  as  against  Stewart.  There  still  remains  a 
considerable  sum  due  Stewart,  and  I  am  by  no  means  prepared 
to  say  that  the  bank,  as  against  him,  has  not  shown  its  right  to 
have  such  residue  appropriated  to  pay  its  judgments.  The 
money,  assuming  it  not  to  have  been  paid  over,  is  still  under 
the  control  of  the  court,  and  the  petitions  make  out  a  case,  in 
which,  if  they  do  not  establish  a  lien,  they  show  the  creditor  to 
be  remediless  at  law,  which  brings  the  case  within  the  decision 
of  the  Court  of  Appeals  in  Clagett,  Adm^r  of  Beares  vs. 
Worthington,  3  Gill,  84. 


466  HIGH  COURT  OF    CHANCERY. 

The  petitions  will  not,  therefore,  be  dismissed  as  to  Stewart, 
but  will  stand  over,  with  liberty  to  amend,  by  bringing  the  in- 
solvent trustee  of  Stewart  before  the  court. 

[No  appeal  was  taken  from  this  order.] 


BOYD  AND  HANCE 

vs. 

ALEXANDER  HARRIS  ETAL. 

MACKALLHARRIS  f    SEPTEMBER  TERM,  1849. 

vs. 

LAVEILLE  AND  WIFE. 
CONSOLIDATED. 

[CREDITORS  BILL — DECREE  FOR  AN  ACCOUNT — INJUNCTION.] 

A  DECREE  for  an  account  in  a  suit,  by  one  or  more  creditors  against  the  execu- 
tor, either  for  themselves,  or  on  behalf  of  themselves  and  all  other  creditors, 
is  for  the  benefit  of  all,  and  in  the  nature  of  a  judgment  for  all,  and  from  the 
date  of  such  decree,  an  injunction  will  be  granted  upon  motion  of  either 
party,  and  upon  a  due  disclosure  of  assets  to  stay  all  proceedings  of  any 
creditor  at  law. 

In  order,  however,  to  prevent  abuse  by  connivance  between  an  executor  or 
administrator,  and  a  friendly  creditor,  the  practice  is,  to  grant  an  injunction 
only  when  the  answer  or  affidavit  of  the  executor  or  administrator  states  the 
amount  of  the  assets,  and  upon  the  terms  of  bringing  the  assets  into  court, 
or  obeying  such  other  order  of  the  court,  as  the  circumstances  of  the  case 
may  require. 

The  power  of  this  court  to  grant  injunctions  to  restrain  creditors  from  pro- 
ceeding at  law  after  a  decree  for  an  account,  is  not  confined  to  cases  in 
which  the  application  is  made  by  the  executor  or  administrator,  but  extends 
to  applications  made  by  the  heir,  or  by  another  creditor,  or  a  common  lega- 
tee, or  perhaps  by  a  residuary  legatee. 

Where  judgments  at  law,  upon  which  executions  have  issued  and  been  levied 
upon  lands  are  enjoined  ;  after  the  dissolution  of  the  injunction, nothingmore 
is  necessary  to  authorize  the  sheriff  to  sell,  than  writs  of  venditioni  exponas. 
The  lands  are  to  be  regarded  as  in  custodia  legis,  and  the  death  of  the  defend- 
ant in  the  judgments  after  execution  had  issued  and  been  levied,  does  not 
render  a  scirefadas  necessary,  against  his  heirs  or  terretenants. 

The  courts  always  observe  great  caution  in  taking  property  out  of  the  hands  of 
a  sheriff,  held  by  him  under  execution,  and  the  case  of  Alexander  vs.  Ghiselin, 


BOYD  AND   HANCE  VS.  HARRIS.  467 

is  the  only  case  in  which  the  sheriff's  possession  has  been  disturbed,  unless 
upon  some  grounds  affecting  the  validity  of  the  judgment,  or  the  regularity 
of  the  process,  by  virtue  of  which  the  seizure  was  made. 

A  petition  was  filed,  asking  that  a  sale  made  by  the  sheriff  under  the  execu- 
tions upon  the  judgments  above  mentioned,  should  be  vacated,  and  the  prop- 
erty resold  by  a  trustee  appointed  under  a  decree  in  a  creditor's  suit,  to 
to  which  the  judgment  creditor  was  not  a  party.  But  the  court  refused  to 
grant  the  relief  asked  for,  and  said,  that  it  was  neither  warranted  by  authority, 
nor  by  any  established  principles  of  law  or  equity. 

A  court  of  equity,  will,  under  special  circumstances,  and  when  the  estate  is  in 
danger  of  being  sacrificed  in  consequence  of  clouds  upon  the  title,  or  conflict 
and  confusion  growing  out  of  the  number  and  character  of  the  liens  and  in- 
cumbrances  upon  it,  interpose,  and  keeping  rival  creditors  off,  sell  the  prop- 
erty for  the  general  benefit  of  all. 

[Sometime  in  the  year  18 — ,  Basil  Jefferson,  of  Calvert 
County,  since  deceased,  purchased  certain  land  in  that  county, 
of  one  Tubman  K.  Long,  and  died  before  it  was  entirely  paid 
for,  leaving  a  daughter,  Ann  Jefferson,  (who  afterwards  inter- 
married with  the  complainant  Boyd,  and  died  without  issue,) 
his  heiress  at  law.  Levin  W.  Ballard  was  appointed  his  ad- 
ministrator, and  afterwards,  with  the  consent  of  said  Ann,  and 
in  order  to  save  the  personalty,  he  sold  the  land  purchased  of 
Long,  to  Alexander  Harris  :  who,  to  secure  the  payment  of  the 
purchase  money  in  installments,  gave  Ballard  his  bonds  payable 
at  the  times  therein  specified.  The  personal  estate  was  then 
handed  over  to  Ann  Jefferson,  and  Ballard,  on  the  faith  of  said 
securities  given  him  by  Harris,  proceeded  to  pay  a  large  por- 
tion of  the  balance  of  the  purchase  money  due  by  his  intestate, 
Jefferson,  and  afterwards  departed  this  life  ;  whereupon  the 
other  complainant,  Richard  Hance,  was  appointed  administra- 
tor de  bonis  non,  of  Basil  Jefferson,  and  Robert  W.  Kent  was 
appointed  administrator,  and  James  Kent,  (on  the  death  of 
Robert,)  administrator  de  bonis  non  of  said  Ballard. 

The  original  object  of  this  suit,  which  was  instituted  by 
Boyd  and  Hance,  (the  former  as  heir  of  his  deceased  wife,  and 
the  latter  as  adm.  d.  b.  n.  of  Basil  Jefferson,)  against  Alexan- 
der Harris  and  others,  was  to  compel  the  execution  of  his 
contract  of  purchase  by  Harris,  and  a  proper  application  of  the 
purchase  money  due  by  him ;  but  in  1849,  Harris  being  then 


468  HIGH  COURT  OF  CHANCERY. 

dead,  it  was,  by  bill  of  revivor  and  supplement,  against  his  heirs 
and  his  personal  representative  Mackall  Harris — Kent  not  be- 
ing made  a  party — converted  into  a  creditor's  suit. 

Alexander  Harris  died  in  1847,  and  in  September  term,  1848, 
Mackall  Harris,  his  acting  executor,  filed  his  bill  against  the 
heirs  at  law  of  the  deceased,  for  a  settlement  of  the  estate  of 
the  deceased,  and  also  for  a  sale  of  his  real  estate  to  pay  his 
debts,  in  case  the  personalty  should  prove  insufficient  lor  that 
purpose.  This  last  case,  by  an  agreement  to  which  Kent  was 
not  a  party,  was  consolidated  with  the  case  of  Boyd  and  Hance 
against  Harris  and  others ;  and,  on  the  9th  of  January,  1849,  a 
decree  was  passed,  in  both  cases  consolidated,  for  a  sale  of  the 
real  estate  of  said  Harris,  deceased,  to  pay  his  debts. 

It  further  appeared  from  the  papers  in  the  case  of  Alexander 
Harris  and  others,  against  James  Kent,  administrator  d.  b.  n. 
of  Levin  W.  Ballard,  deceased,  which  were  agreed  to  be  read 
at  the  hearing  of  this  case,  that  previous  to  the  death  of  said 
Harris,  to  wit,  in  the  year  1841,  Kent  recovered  judgment  on 
the  bonds  given  as  above  mentioned  by  Harris  to  Ballard  to  se- 
cure the  payment  of  the  purchase  money  due  by  him,  and  also 
on  a  promissory  note  alleged  to  have  been  given  also  by  Harris, 
for  the  same  purpose,  but  which,  he  contended,  was  given  to 
take  up  one  of  said  bonds,  although  in  consequence  of  Bal- 
lard's  death  the  bond  was  never  delivered  to  him.  That,  in 
1845,  Harris  filed  his  bill  in  the  equity  side  of  Calvert  County 
Court,  in  which  those  judgments  were  rendered,  praying  and 
obtaining  upon  the  grounds  therein  stated,  an  injunction  to  stay 
execution  upon  those  judgments ;  which  injunction,  the  case 
being  transferred  to  this  court,  was,  in  October,  1848,  dissolved 
as  to  all  of  the  judgments,  except  the  one  rendered  upon  the 
promissory  note.  Kent,  thereupon,  proceeded  to  sell  a  portion 
of  the  land  of  said  Harris,  to  satisfy  said  judgments,  and 
through  his  agent  became  a  purchaser  thereof  himself,  at  a 
price  greatly  below  its  value. 

On  the  second  of  November,  1849,  Merrill  and  others,  judg- 
ment creditors  of  Alexander  Harris,  deceased,  filed  their  peti- 
tion in  this  court,  praying  that  the  sales  to  Kent  might  be  an- 


BOYD  AND  HANCE  VS.  HARRIS.  469 

nulled,  and  the  lands  purchased  by  him  again  sold  by  the  trus- 
tee appointed  under  the  decree  in  this  cause  ;  and  the  matter 
of  the  petition  having  been  argued  before  him,  the  Chancellor 
delivered  the  following  opinion  : 

THE  CHANCELLOR : 

After  reviewing,  with  the  industry  and  ability  for  which  he 
was  so  pre-eminently  distinguished,  all  the  authorities  upon  the 
question,  Chancellor  Kent,  in  the  case  of  Thompson  vs.  Brown, 
4  Johns.  Ch.  Rep.,  619,  stated,  that  it  was  "finally  settled  in 
the  English  Chancery  that  upon  the  usual  decree  to  account, 
in  a  suit  by  one  or  more  creditors  against  the  executor,  either 
singly  for  themselves,  or  specially  on  behalf  of  themselves  and 
all  other  creditors,  the  decree  is  for  the  benefit  of  all  the  cred- 
itors, and  in  the  nature  of  a  judgment  for  all ;  and  all  are  enti- 
tled, and  are  to  have  notice  to  come  in  and  prove  their  debts 
before  the  master ;  and  that  from  the  date  of  such  decree,  an 
injunction  will  be  granted  upon  the  motion  of  either  party,  and 
upon  a  due  disclosure  of  assets,  to  stay  all  proceedings  of  any 
of  the  creditors  at  law."  At  one  time,  and  until  a  compara- 
tively recent  period,  this  remedy  would  not  be  given  unless 
where  a  bill  for  an  injunction  had  been  expressly  filed,  against 
the  creditor  whose  action  at  law  was  sought  to  be  restrained, 
but  it  was  subsequently  held,  in  order  to  save  expense,  that 
the  executor  when  sued  at  law  should  be  permitted  upon  giv- 
ing notice  to  the  creditor,  to  bring  him  in,  and  upon  motion,  to 
restrain  him  by  injunction.  Paxton  vs.  Douglass,  8  Ves.  Jun'r, 
520. 

In  order,  however,  to  prevent  abuse  by  connivance  between 
an  executor  or  administrator,  and  a  friendly  creditor,  the  prac- 
tice is  to  grant  an  injunction  only  when  the  answer  or  affidavit 
of  the  executor  or  administrator  states  the  amount  of  the  assets, 
and  upon  the  terms  of  bringing  the  assets  into  court,  or  obey- 
ing such  other  order  of  the  court,  as  the  circumstances  of  the 
case  may  require.  1  Story  Eq.,  sec.  549  ;  Gilpin  vs.  Lady 
Southampton,  IS  Ves.,  459. 

The  late  Chancellor,  in  the  case  of  Hammond  vs.  Hammond, 
VOL.  1—40 


470  HIGH  COURT  OF  CHANCERY. 

2  Bland,  362,  36  ,  said,  that  though  the  court  when  asked  for 
such  an  injunction,  might  look  into  the  answer  of  the  executor 
or  administrator  and  see  what  amount  he  admits  to  be  in  his 
hands,  or  order  him  to  make  an  affidavit  of  the  amount,  and  to 
bring  the  money  into  court,  yet  that  it  is  not  an  absolute  rule  of 
the  court  to  refuse  an  injunction  for  want  of  such  an  affidavit. 

It  is  also  regarded  as  settled  practice,  that  the  power  of  this 
court  to  grant  injunctions  to  restrain  creditors  from  proceeding 
at  law,  after  this  court  has  passed  a  decree  to  account,  and 
thereby  assumed  the  administration  of  the  assets,  is  not  con- 
fined to  cases  in  which  the  application  for  its  interposition  is 
made  by  the  executor  or  administrator;  but,  it  extends  to  ap- 
plications made  by  the  heir  or  by  another  creditor,  or  a  com- 
mon legatee,  or  perhaps  by  a  residuary  legatee.  3  Daniel's 
Ch.  Prac.,1835. 

It  is  therefore  supposed,  that  the  court  has  the  power,  at  the 
instance  of  the  petitioners,  E.  H.  Merrill  and  others,  and  in  a 
proper  case  would  exercise  it,  to  restrain  a  creditor  from  pro- 
ceeding upon  judgments  against  the  administrator  of  the  de- 
ceased Alexander  Harris. 

[Having  made  these  preliminary  remarks,  the  Chancellor  pro- 
ceeded to  state  the  nature  of  the  case,  after  which  he  con- 
tinued:] 

It  is  believed  that  no  case  has  been  decided  which  would 
justify  the  court  in  granting  the  relief  asked  for  by  this  petition, 
and  that  it  is  not  warranted  by  any  established  principle  of 
law  or  equity. 

I  am  not  prepared  to  go  to  the  extent  of  saying,  that  this 
court  may  not,  after  the  usual  decree  for  an  account,  or  quod 
computet,  in  a  creditor's  suit  against  the  executor,  or  after  a 
decree  for  the  sale  of  the  real  estate  upon  such  a  bill — by 
which  the  court  assumes  to  itself  the  general  administration  of 
the  assets  of  the  deceased  debtor — compel  a  prior  judgment 
creditor  to  come  in  and  share  the  fate  of  the  other  creditors, 
•when  such  prior  judgment  is  de  bonis  testatoris  simply. 

In  the  case  of  Lee  vs.  Park,  15  Eng.  Cond.  Ch.  Rep.,  715, 


BOYD  AND  HANCE  VS.  HARRIS.  471 

the  master  of  the  rolls  refused,  under  the  special  circumstances 
of  that  case,  to  restrain  the  creditor  from  issuing  execution 
upon  his  judgment  de  bonis  testatoris,  et  si  non,  de  bonis  pro- 
priis,  as  to  costs,  rendered  before  a  decree  against  executors 
to  account.  But  it  is  clear  that  the  refusal  was  not  upon  the 
ground  that  such  was  the  invariable  course  of  the  court,  and 
one  or  two  cases  are  referred  to  in  which  prior  judgment  credi- 
tors had  been  so  restrained  from  proceeding  upon  their  judg- 
ments. 

And  in  the  case  of  Hammond  vs.  Hammond,  2  Bland,  362, 
the  late  Chancellor  said,  that  if  a  bond  creditor  has  got  a  judg- 
ment against  the  executor  or  heir  before  the  decree,  then  after 
the  decree,  although  such  creditor  may  come  in  and  prove  as  a 
judgment  creditor  against  the  real  or  personal  estate,  yet  the 
court  will,  on  application,  grant  an  injunction  to  prevent  him 
from  taking  out  an  execution  against  the  assets. 

But  the  case  now  under  consideration  is  radically  and  widely 
different  from  any  of  those  referred  to  in  the  argument.  Here 
the  judgments  were  rendered  against  the  deceased  debtor  in 
his  lifetime,  and  executions  upon  them  were  issued  and  laid 
upon  the  property  afterwards  purchased  by  Kent,  also  before 
the  death  of  Harris. 

These  judgments,  it  is  true,  were  afterwards  enjoined,  upon 
a  bill  filed  by  Harris,  but  upon  the  dissolution  of  the  injunction 
in  October,  1848,  nothing  more  was  necessary,  to  authorize  the 
sheriff  to  sell,  but  writs  of  venditioni  exponas.  The  lands  are 
to  be  regarded  as  in  custodia  legis,  and  the  subsequent  death 
of  Harris  interposed  no  obstacle  to  the  proceedings  of  the 
sheriff. 

The  case  of  Hanson  vs.  Barnes'  Lessee,  3  G.  Sf  J.,  359, 
is  conclusive  to  show,  that  notwithstanding  the  death  of  Harris, 
after  the  execution  had  issued  and  been  levied,  a  scire  facias 
against  his  heirs  or  terretenants  was  not  necessary,  and  that  a 
sale  under  such  process  passed  the  title  to  the  purchaser.  In- 
deed, the  case  of  Hanson  vs.  Barnes  goes  beyond  this,  because 
the  sale  in  that  case  was  decided  to  transfer  the  title,  though 
the  execution  had  not  been  levied  before  the  death  of  the 


472  HIGH  COURT  OF  CHANCERY. 

debtor.  It  had  been  issued  and  placed  in  the  hands  of  the 
sheriff,  but  not  actually  levied,  before  the  event  of  the  death 
occurred. 

In  this  case,  the  statement  of  facts  shows  that  the  executions 
were  levied  before  the  death  of  Harris,  and  unless  the  case  of 
Hanson  and  Barnes  is  to  be  overturned,  the  sheriff  was  fully 
authorized  after  his  death  to  proceed  and  sell  the  property. 

Great  caution  has  always  been  observed  by  the  courts  in 
taking,  or  authorizing  property  to  be  taken,  out  of  the  hands 
of  a  sheriff,  held  by  him  under  executions,  and  it  probably  may 
be  safely  asserted  that  the  case  of  Alexander  et  al.  vs.  Ghiselin 
et  al.,  5  Gill,  138,  is  the  only  case  in  which  the  sheriff's  possess- 
sion  has  been  disturbed,  unless  upon  some  grounds  affecting 
the  validity  of  the  judgment,  or  the  regularity  of  the  process, 
by  virtue  of  which  the  seizure  was  made. 

But  the  case  of  Alexander  vs.  Ghiselin  was  confessedly  de- 
cided upon  the  special  terms  of  the  act  of  1805,  ch.  110,  sec. 
7,  the  true  construction  of  which,  the  court  said,  required  the 
trustee  of  the  insolvent  to  take  into  his  possession  all  the  estate 
and  effects  to  which  he  had  a  right  of  possession  at  the  time 
of  his  application,  and  to  sell  and  dispose  of  all  his  property, 
whether7  in  possession,  remainder  or  reversion,  and  to  pay  off 
the  liens  and  incumbrances  thereon.  Regarding  an  execution 
as  a  lien  on  personal  property  only  when  actually  levied  prior 
to  the  insolvent's  petition. 

The  present  application,  moreover,  requires  the  court  to 
stretch  its  authority  beyond  even  the  case  of  Alexander  and 
Ghiselin.  There  the  trustee  in  insolvency  was  decided  to  be 
authorized  to  take  property  out  of  the  hands  of  the  sheriff, 
though  actually  levied  on  prior  to  the  insolvent's  petition. 

But  in  this  case,  the  property  is  no  longer  in  the  hands  of  the 
sheriff,  having  been  before  the  present  petition  was  filed,  sold 
by  him  in  the  due  execution  of  his  duty,  and  in  conformity 
with  the  process  in  his  hands. 

Even  then,  if  the  principles  settled  in  the  case  of  Alexander 
vs.  Ghiselin  could  be  invoked  in  aid  of  these  petitioners,  which 
is  not  admitted,  still  they  stop  short  of  warranting  the  relief 


BOYD  AND  HANCE  VS.  HARRIS.  473 

now  asked  for,  which  is  not  merely  that  a  judgment  creditor 
who  has  obtained  his  judgment  in  the  lifetime  of  his  deceased 
debtor,  and  issued  and  levied  his  executions  prior  to  that 
event,  shall  be  compelled  to  come  in  and  await  the  proceedings 
in  a  creditor's  suit,  but  that  a  sale  made  under  such  an  execu- 
tion shall  be  vacated,  and  the  property  sold  resold  by  the 
trustee  appointed  in  the  creditor's  suit. 

Some  stress  has  been  laid  upon  the  fact  that  Kent  was  a 
party  to  the  original  bill  filed  by  Boyd  and  Hance  in  1845,  and 
which  was  subsequently  to  the  death  of  Harris  converted  into 
a  creditor's  suit.  But  the  bill  to  which  Kent  was  a  party,  and 
to  which  he  responded,  had  none  of  the  features  of  a  creditor's 
bill,  and  although  the  bill  of  revivor  and  of  supplement,  filed 
after  the  death  of  Harris,  may  have  given  it  that  character, 
Kent  not  having  been  made  a  party  to  this  latter  proceeding, 
it  cannot  be  right  to  affect  him  with  it.  He  answered  the 
original  bill  and  consented  to  abide  by  the  decree  which  the 
court  might  pass  upon  the  case  made  by  that  bill.  But  surely 
this  consent  should  not  oblige  him  to  submit  to  a  decree  passed 
upon  another  bill  to  which  he  was  no  party,  and  to  which  he 
never  responded.  It  was  the  unquestionable  right  of  Kent,  if 
it  is  proposed  to  bind  him  by  the  supplemental  bill,  to  file  his 
answer  to  it,  when  he  might,  and  probably  would,  have  pro- 
tested, under  the  circumstances,  against  being  brought  in  and 
exposed  to  the  delay  of  a  creditor's  suit.  He  had  his  judg- 
ment and  execution  levied,  and  would  most  likely  have  said,  I 
prefer  to  proceed  upon  them,  to  coming  here  and  waiting  the 
result  of  this  cause.  That  he  had  a  right  to  answer  the  sup- 
plemental bill  is  clear.  Thomas  vs.  The  Visitors  of  Freder- 
ick School,  7  G.  #/.,  387. 

It  has  been  urged  that  this  is  one  of  those  cases  in  which 
the  court,  interposing  for  the  good  of  the  general  body  of  the 
creditors,  will  prevent  an  individual  creditor  from  proceeding 
separately  to  enforce  his  own  debt.  That  this  court  has,  under 
special  circumstances,  and  when  the  estate  was  in  danger  of 
being  sacrificed,  in  consequence  of  the  clouds  upon  the  title,  or 
conflict  and  confusion  growing  out  of  the  number  and  charac- 
40* 


474  HIGH  COURT  OF  CHANCERY. 

ter  of  the  liens  and  incumbrances  upon  it,  interposed,  and 
keeping  the  rival  creditors  .off,  sold  the  property  for  the  general 
benefit  of  all,  seems  to  be  admitted.  It  is  a  power,  however, 
of  rather  an  extraordinary  kind,  and  to  be  cautiously  exerted. 
The  difficulties  and  embarrassments  which  surround  this  estate 
are  not  perhaps  of  such  a  complicated  character  as  to  justify 
so  strong  a  proceeding  ;  and,  besides,  here  the  sale  has  been 
made,  and  no  case  I  presume  has  gone  to  the  extent  of  depriv- 
ing a  creditor  of  the  fruits  of  a  sale  actually  made.  It  is 
admitted  that  the  property  purchased  by  Kent  sold  for  less  than 
its  actual  value.  This  is  to  be  regretted,  but  I  see  nothing  in 
the  cause  to  impute  blame  to  him  on  that  account ;  and  there- 
fore I  do  not  think  the  sale,  for  this  reason,  should  be  set 
aside. 

Being  of  opinion,  then,  that  the  relief  prayed  by  the  petition 
cannot  be  granted,  it  must  be  dismissed. 

[No  appeal  was  taken  from  this  order.] 


CLARK  AND  MANKIN 

vs. 
ELIZABETH  B.  ABBOTT         j.      SEPTEMBER  TERM,  1849. 

AND 

WM.  H.  V.  CRONISE. 

[PRACTICE — SALES  BY  TRUSTEES — RENTS  OF  MORTGAGED  PROPERTY.] 

A  COURT  of  equity  will  always  ratify  and  confirm  that  when  done,  which,  as  a 
matter  of  course,  if  previously  applied  to,  it  would  have  ordered  to  be  done. 

A  decree  was  passed,  authorizing  the  trustee  to  sell  so  much  of  the  mortgaged 
property  as  would  be  necessary  to  pay  the  amount  then  due.  The  execu- 
tion of  this  decree  was  stayed  by  injunction,  and  in  the  mean  time,  other  in- 
stallments of  the  mortgage  debt  became  due.  After  the  injunction  was  dis- 
solved, the  trustee  sold  so  much  of  the  property  as  would  satisfy  the  amount 
due  at  the  time  of  sale.  HELD — 

That,  as  the  decree  must  be  regarded  as  standing  as  a  security  for  the  entire 
mortgage  debt,  the  court,  if  applied  to,  would  have  empowered  the  trustee  to 
do  what  he  has  done,  and  will,  therefore,  give  its  subsequent  assent  to  the 
act. 


CLARK  VS.  ABBOTT.  475 

A  mortgagee  having  given  notice  to  the  tenants  holding  the  mortgaged  prem- 
ises, under  leases  granted  by  the  mortgagor,  either  before,  or  after  the  date 
of  the  mortgage,  is  entitled  to  receive  from  the  tenants,  the  rents  in  arrearat 
the  time  of  the  notice,  as  well  as  those  which  accrue  afterwards. 

Trustees,  acting  under  decrees  to  sell,  have  been  permitted,  when  sales  of  the 
property  could  not  be  readily  or  advantageously  made,  to  rent  it,  and  account 
for  the  rents  to  the  parties  entitled  to  the  proceeds,  and  the  court  will  give 
like  authority  to  collect  and  account  for  rents  due,  when  the  sales  are 
effected. 

[The  facts  of  this  case  will  appear  from  the  Chancellor's  opin- 
ion.] 

THE  CHANCELLOR: 

This  cause  is  brought  before  the  court  upon  the  order  of  the 
17th  of  September  last,  passed  upon  the  petition  of  the  com- 
plainants, praying  that  the  trustee  appointed  to  sell  the  mort- 
gaged property  may  be  authorized  to  collect  and  receive  cer- 
tain rents  and  interest  which  had  accrued  thereon  prior  to  the 
sale. 

And,  in  addition  to  the  answer  of  the  defendant,  Mrs.  Abbott, 
in  opposition  to  the  prayer  of  the  petition,  objections  are  in- 
terposed by  her  to  the  ratification  of  the  sale  made  by  the 
trustee. 

The  decree  which  was  passed  on  the  8th  of  July,  1848,  au- 
thorized the  trustee  to  sell  so  much  of  the  mortgaged  property 
as  would  be  necessary  to  pay  the  amount  then  due  ;  and  the 
first  and  second  objections  to  the  ratification  of  the  sale,  charge, 
that  he  transcended  his  power  in  this  respect,  by  selling  to  an 
amount  far  exceeding  the  installments  due  at  the  period  of  the 
decree.  Soon  after  the  passage  of  the  decree,  to  wit,  on  the 
22d  of  February,  1849,  a  bill  was  filed  in  this  court  by  Mrs. 
Cronise,  who  was  a  party  to  the  mortgage,  praying  for  the  rea- 
sons therein  stated,  that  the  execution  of  the  decree  might  be 
stayed  by  injunction,  which  was  ordered  and  continued  in 
force,  until  the  23d  of  July  last,  when  it  was  so  far  dissolved 
as  to  authorize  the  trustee  to  sell  the  interest  of  Mrs.  Abbott 
and  Cronise,  the  husband  of  the  complainant  in  that  case,  but 
continued  in  force  with  regard  to  the  reversionary  interest  of 
the  complainant. 


476  HI<>H  COURT  OF  CHANCERY. 

The  trustee  thereupon  proceeded  to  sell ;  on  the  23d  of  August 
last,  he  made  sale  of  the  property,  or  of  the  interests  of  Mrs. 
Abbott  arid  Cronise  the  husband,  therein.  The  sales  amount- 
ing in  gross  to  the  sum  of  $6,149  78.  The  installments  of  the 
mortgage  debt  due  at  that  time  amounted  to  $5,502,  and  on  the 
29th  of  the  then  ensuing  month  of  September  a  further  install- 
ment of  $750  became  due,  which  would  have  carried  the  debt 
to  an  amount  exceeding  the  gross  sum  of  the  sales. 

It  is  quite  probable,  indeed,  that  the  latter  will  be  little,  if 
any,  more  than  adequate  to  pay  the  amount  actually  due  at  the 
period  of  the  sale  ;  when  the  expenses  and  costs  of  the  proceed- 
ings, including  the  commission  of  the  trustee,  are  deducted. 

Looking  to  the  language  of  the  decree,  the  trustee  was  only 
authorized  to  sell  to  pay  the  amount  then  due ;  but  it  can  hardly  be 
questioned  that  upon  an  application,  stating  the  delay,  and  the 
causes  which  had  delayed  the  execution  of  the  decree,  the  court 
would  have  authorized  the  trustee  to  sell,  to  pay  the  installments 
which  had  fallen  due  in  the  interval  ;  and  it  is  a  well  establish- 
ed principle  of  equity,  that  the  court  will  sanction,  when  done, 
what,  upon  application,  it  would  have  authorized  to  be  done. 
The  sale  is  not  impeached  upon  the  ground  of  inadequacy  of 
price,  nor  upon  any  other  ground  affecting  the  substantial 
merits.  The  objection  is,  that  more  property  has  been  sold 
than  was  sufficient  to  pay  those  portions  of  the  mortgaged  debt 
which  were  due  when  the  decree  passed.  The  answer  to  this 
is,  that  before  the  trustee  could  sell,  other  portions  of  the  debt 
became  due,  and  as  the  property  mortgaged  was  a  security  for 
those  other  portions,  as  well  as  for  those  which  became  due  an- 
terior to  the  decree ;  and  as  the  decree  must  be  regarded  as 
standing  as  a  security  for  the  entire  mortgage  debt,  the  court, 
if  applied  to,  would  have  empowered  the  trustee  to  do  what  he 
has  done,  and  will  now,  upon  the  principle  already  referred  to, 
give  its  subsequent  sanction  to  the  act. 

The  third  exception  taken  to  the  ratification  of  the  sale,  was, 
"that  the  said  trustee  has  sold  stock,  and  debts  secured  by 
mortgage,  whereas  such  interests  were  not  liable  to  be  sold  un- 
der said  decree."  The  mortgagors  professed  to  convey  to  the 


CLARK  VS.  ABBOTT.  477 

mortgagees,  "all  the  estate  and  property,  real,  personal  and 
mixed,  without  reservation  or  exception,  wheresoever  situate  or 
being,  to  which  they  or  either  of  them  were  in  any  manner  en- 
titled, interested  in,  or  could  claim ;"  and  the  decree  was  for  a 
sale  of  "the  mortgaged  property  in  said  proceedings  mentioned, 
or  so  much  thereof,"  &c. 

[As  to  this  exception,  the  Chancellor  said  :] 

In  answer  to  the  third  exception  to  the  ratification  of  the  sale, 
it  may  be  sufficient  to  say,  that  the  decree  authorizes  a  sale  of 
the  mortgaged  property,  without  restriction  or  limitation,  and 
it  is  believed,  that  if  this  court  has  erred,  the  only  remedy  is  by 
appeal,  or  by  some  other  proceeding  by  which  such  errors  can 
be  reviewed  and  corrected. 

The  propositions  of  law  announced  above,  are  maintained,  it 
is  thought,  by  the  cases  of  Campbell  vs.  McComb,4:  Johns.  Ch. 
Rep.,  534,  and  Harris  fy  Chauncey  vs.  Alcock,  10  G.  #  J.  226. 

By  the  former  it  was  decided,  that  though  the  mortgagor,  as 
owner  of  the  equity  of  redemption,  may,  by  paying  the  interest 
and  costs  due,  stay  the  sale,  the  decree  of  foreclosure  will  re- 
main as  a  further  security  to  enforce  the  payment  of  the  future 
interest  and  the  installments  of  the  principal,  as  they  respectively 
become  due.  And  by  the  latter,  at  page  252,  the  position  that 
the  court  will  always  ratify  and  confirm  that  when  done,  which, 
as  a  matter  of  course,  if  previously  applied  to,  it  would  have  or- 
dered to  be  done,  is  stated  with  a  perspicuity  and  emphasis 
which  is  incapable  of  misconstruction. 

No  sufficient  reason,  then,  appearing  for  vacating  the  sales, 
they  will  be  confirmed  ;  and  the  only  question  remaining  to  be 
disposed  of,  arises  upon  the  petition  of  the  complainants,  that 
the  trustee  may  be  authorized  to  receive  the  rents  and  interests 
which  accrued  on  the  mortgaged  property  prior  to  the  sales. 

It  appears  by  a  statement  of  the  claim  of  the  complainants, 
filed  in  conformity  with  the  act  of  1833,  ch.  181,  that  the  install- 
ments of  the  mortgage  debt  due  and  to  become  due,  amount  to 
$10,002,  and  as  the  gross  proceeds  of  the  sales  are  only  $6,149 
78,  the  deficiency  is  large ;  and  the  mortgagees  are  threatened 


478  HIGH   COURT  OP  CHANCERY. 

with  a  heavy  loss,  from  which  probably  they  may  not  be  pro- 
tected, even  if  their  present  application  is  successful. 

The  authorities  show  very  clearly,  that  a  mortgagee,  having 
given  notice  to  the  tenants  holding  the  mortgaged  premises 
under  leases  granted  by  the  mortgagor,  either  before  or  after  the 
date  of  the  mortgage,  is  entitled  to  receive  from  the  tenants  the 
rents  in  arrear  at  the  time  of  the*  notice,  as  well  as  those  which 
accrue  afterwards.  Moss  vs.  Gallimore  and  another,  1  Douglas, 
278;  Pope  vs.  Biggs,  17  Eng.  C.  L.  Rep.,  368 ;  1  Powell  on 
Mortgages,  175,  176,  177. 

In  this  case,  the  requisite  notice  appears  to  have  been  given 
on  the  23d  of  February  last,  from  which  period  it  is  presumed 
no  payments  have  been  made  to  the  mortgagors  ;  and  as  from 
that  period  the  tenant  could  not  be  compelled  to  pay  the  mort- 
gagors, it  would  seem  to  follow,  that  if  the  rents  cannot  be  col- 
lected under  the  authority  of  this  court,  and  applied  to  the  ex- 
tinguishment of  the  mortgage  debt,  they  cannot  be  collected  at 
all. 

The  objection  taken  by  Mrs.  Abbott  to  the  application  of  the 
petitioners  is,  that  by  the  terms  of  the  decree,  the  petitioners  are 
entitled  to  ask  for  nothing  more  than  a  sale  of  the  principal 
mortgaged  estate  ;  and  that  this  court  has  no  authority  or  juris- 
diction, by  order  on  said  petition,  to  direct  said  rents  or  ar- 
rears, or  any  part  thereof,  to  be  collected  and  paid  over  to  said 
petitioners.  But  cases  are  not  unfrequent  in  this  court,  in 
which  trustees,  acting  under  the  authority  of  decrees  similar  in 
their  terms  to  the  present,  have  been  permitted,  when  sales  of 
the  property  could  not  be  readily  or  advantageously  made,  to 
rent  it,  and  account  for  the  rents  to  the  parties  entitled  to  the 
proceeds  of  the  sales  ;  and  no  reason  suggests  itself  why  the 
court  may  not  give  the  like  authority  to  collect  and  account  for 
rents  due,  when  the  sales  are  effected.  And  as  in  this  case  it 
is  apparent  that  the  money  raised  by  the  sales  is  quite  inade- 
quate to  pay  the  mortgage  debt,  the  propriety  of  applying  the 
rent  to  that  object  is  most  obvious. 

The  court  will,  therefore,  give  the  trustee  power  to  collect 
the  interest  and  rents  due  upon  the  mortgaged  property,  and 


HOLLIS  VS.  HOLLIS.  479 

bring  the  money  into  court,  to  be  disposed  of  as  justice  may  re- 
quire. If  the  application  of  these  rents  shall  accelerate  the 
payment  of  the  debt  due  the  mortgagees,  full  authority  for  such 
a  course  may  be  found  in  the  case  of  Burton  vs.  Smith  et  al., 
13  Peters,  464. 

[No  appeal  was  taken  from  this  order.] 


FRANCES  HOLLIS 

BY  HER  NEXT  FRIEND 

>      DECEMBER  TERM,  1849. 

vs. 

THOS.  I.  HAYES  AND  AMOS  HOLLIS. 

[VACATING  CONVEYANCE — RESULTING  TRUST — STATUTE  OF  FRAUDS.] 

THE  circumstances  which  will  warrant  the  court  in  setting  aside  a  conveyance 
actually  executed,  must  be  much  stronger  than  would  be  required  to  induce 
it  to  withhold  its  aid,  if  applied  to,  to  compel  an  execution  of  a  mere  agree- 
ment to  convey. 

Inadequacy  of  price  may  be  so  gross  and  manifest,  as  to  induce  the  court  to  set 
aside  a  conveyance  actually  made. 

Where  the  consideration  for  a  conveyance  is  paid  by  one,  not  a  party  to  the 
instrument,  there  is  a  resulting  trust  in  his  favor — a  trust  implied  by  law, 
from  the  presumed  intention  of  the  parties,  and  the  obvious  justice  of  the 
case  ;  which  may  be  proved  by  parol  being  excepted  from  the  statute  of 
frauds. 

[The  complainant  in  this  case,  who  was  a  feme  covert,  and 
sued  by  her  next  friend,  was,  in  her  own  right,  seized  and 
possessed  in  fee.  at  the  time  of  her  marriage,  of  a  parcel  of 
land  containing  about  one  hundred  acres,  and  worth  about 
$1700.  Sometime  after  her  marriage,  she  separated  from  her 
husband,  who  was  a  man  of  prodigal  and  intemperate  habits, 
and  the  interest  acquired  by  him  in  her  land,  was  afterwards 
taken  in  execution  for  his  debts,  and  sold  at  constable's  sale  to 
Thomas  Hendon.  In  the  year  1836,  the  complainant  induced 
the  defendant,  Hayes,  who  had  married  her  niece,  to  purchase 
of  Hendon  the  interest  sold  to  him  as  above  mentioned ;  and 


480  HIGH  COURT  OF  CHANCERY. 

to  enable  him  to  obtain  the  money  required  for  the  purchase, 
she,  together  with  her  husband,  executed  to  him  a  deed  of 
conveyance  of  the  land,  which  he  mortgaged  to  Mrs.  Herbert, 
from  whom  he  borrowed  the  money,  as  a  security  for  its  re- 
payment. 

The  amount  of  the  money  thus  raised  upon  the  mortgage 
was  $150,  of  which,  $100  was  paid  to  Hendon  on  account  of 
the  land,  and  the  rest  was  paid  to  him,  for  some  articles  of 
personal  property,  which  had  been  also  sold  for  the  husband's 
debts  and  purchased  by  said  Hendon.  The  deed  from  Hendon 
to  Hayes  was  absolute  on  the  face  of  it,  as  was  also  the  one  from 
the  complainant  and  her  husband  to  him,  and  although  a 
money  consideration  was  expressed  in  the  latter,  none  was 
ever  paid. 

The  defendant  Hayes,  claiming  to  hold  the  absolute  estate 
in  the  property  conveyed  by  these  deeds,  the  complainant  in- 
stituted this  suit  against  him,  contending,  that  the  object  of  the 
whole  transaction,  was,  by  conveying  the  property  to  the  de- 
fendant, Thomas  I.  Hayes,  in  trust  for  her  separate  use,  to 
secure  it  from  the  further  execution  for  her  husband's  debts, 
(his  interest  therein  having  been  several  times  sold  by  his 
creditors,  and  redeemed  by  her,)  and  'that,  although  there  was 
no  such  trust  expressed  in  the  deeds,  it  was  the  clear  under- 
standing with  Hayes,  that  he  was  to  take  the  estate  conveyed 
by  them,  subject  thereto,  the  complainant  prayed  that  Hayes 
might  be  declared  to  hold  the  property  in  trust  for  her  separate 
use  ;  that  he  should  be  compelled  to  convey  the  same  to  a  new 
trustee,  and  account  for  the  profits  received  from  it  by  him ; 
and  for  general  relief.  By  a  supplemental  bill  afterwards  filed, 
she  prayed  that  the  deed  from  herself,  and  her  husband,  might 
be  declared  void,  and  that  she  might  be  declared  to  hold  the 
property  to  her  separate  use.  The  defendant,  in  his  answer, 
denied  the  trust,  and  relied  also  upon  the  statute  of  frauds. 

In  addition  to  the  above  facts,  disclosed  by  the  pleadings 
and  proofs  fn  the  cause,  it  was  also  proved,  that  the  complain- 
ant was  an  aged  woman,  and  unacquainted  with  business 
matters  ;  and  that,  whilst  the  negotiation  was  pending,  Hayes 


HOLLIS  VS.  HOLLIS.  481 

said  that  it  was  for  the  "use"  or  "the  good"  of  the  complain- 
ant. It  was  proved  further,  that  the  complainant  at  the  time 
of  executing  the  deed,  expressed  herself  entirely  satisfied  with 
it ;  but  that  nothing  was  said  at  the  time,  of  any  trust.] 

THE  CHANCELLOR: 

That  the  defendant  Hayes,  if  his  deed  is  allowed  to  stand, 
will  have  acquired  a  property,  at  a  price  greatly  below  its 
value,  even  if  he  pays  the  $100  to  Mrs.  Herbert,  out  of  his 
pocket,  is  clear  beyond  controversy.  He  paid  but  $100  for  the 
land,  and  there  is  no  witness,  who  does  not  estimate  it  to  be 
worth  $1400,  whilst  one  of  them  carries  it  as  high  as  $2000. 
The  average  of  the  estimates  is  not  much,  if  any,  below  $1750, 
The  contract,  therefore,  appears  to  be  grossly  against  con- 
science, unreasonable,  and  oppressive,  and  there  can  be  no 
question,  as  it  seems  to  me,  that  if  the  defendant  in  this  case, 
was  a  complainant  seeking  to  enforce  such  a  contract,  the 
court  would  refuse  to  enforce  it,  upon  the  ground  of  the  great 
inadequacy  of  the  price.  But  this  is  a  case,  in  which  an 
attempt  is  made  to  set  aside  a  conveyance  actually  executed, 
and  the  circumstances  which  will  warrant  the  court  in  exe- 
cuting such  a  power,  must  be  much  stronger  than  would  be  re- 
quired to  induce  it  to  withhold  its  aid,  if  applied  to,  to  com- 
pel an  execution  of  a  mere  agreement  to  convey.  The  inade- 
quacy of  price,  may,  however,  be  so  great,  as  to  induce  the 
court  to  vacate  a  conveyance  actually  made.  The  difference 
between  the  price  paid,  and  the  value  of  the  thing  purchased, 
may  be  so  gross  and  manifest,  that,  as  said  by  a  distinguished 
writer  on  this  branch  of  the  law,  "it  must  be  impossible  to 
state  it  to  a  man  of  common  sense,  without  producing  an  ex- 
clamation at  the  inequality  of  it."  Sugden  on  Vendors,  193. 

The  idea  of  fraud,  or  undue  imposition,  or  of  some  circum- 
stance which  vitally  affects  the  bona  fides  of  the  transaction, 
necessarily  and  unavoidably  presents  itself,  when  the  property 
is  parted  with  upon  terms  so  utterly  disproportioned  to  its 
value. 

It  is  not,  however,  deemed  necessary  to  decide  in  this  case, 
VOL  i — 41 


482  HIGH  COURT  OF  CHANCERY. 

whether  the  conveyance  to  the  defendant  Hayes,  would  be 
avoided  upon  the  ground  of  inadequacy  of  price,  as  it  seems  to 
me,  that  there  are  other  grounds  upon  which  the  relief  sought 
by  the  bill  might  be  granted,  if  the  case  was  in  a  condition  for 
a  final  decree. 

The  bill  alleges,  and  the  evidence  shows,  that  the  considera- 
tion for  the  conveyance  was  paid  by  the  complainant,  or  bor- 
rowed upon  the  credit  of  her  title,  and,  therefore,  that  there  is 
a  resulting  trust  in  her  favor,  a  trust  implied  by  law,  from  the 
presumed  intention  of  the  parties,  and  the  obvious  jnstice  of 
the  case,  and  if  such  is  the  case,  the  statute  of  frauds  relied 
upon  in  the  answer,  is  no  defence,  these  trusts  being  excepted 
from  its  operation.  4  Kent's  Com.,  305  ;  Dorsey  vs.  Clarke, 
4:H.  fy  J.,  551,  556. 

That  such  trusts  do  result,  and  that  parol  evidence  is  admis- 
sible to  establish  the  facts  upon  which  they  arise,  not  only 
against  the  deed,  but  in  .opposition  to  the  answer,  has  been 
shown  by  Chancellor  Kent  upon  a  careful  review  of  the  cases. 
Boyd  vs.  McLean,  1  Johns.  Ch.  Rep.,  582. 

The  inclination  of  my  mind,  therefore,  is,  that  there  is  a  re- 
sulting trust  in  this  case  in  favor  of  the  complainant,  and  I 
might  proceed  at  once  to  pass  such  a  decree,  but  it  seems  to 
me  to  be  proper  before  any  final  decision  is  made,  that  the 
mortgagee  who  advanced  the  money  with  which  Hendon  was 
paid,  should  be  before  the  court,  as  it  does  not  very  clearly  ap- 
pear what  effect  such  a  decision  may  have  upon  the  mortgage. 

That  mortgage  was  executed  by  Hayes,  as  the  absolute 
owner  of  the  property,  and  a  decree  pronouncing  him  to  be 
only  the  trustee  of  the  complainant,  or  vacating  the  convey- 
ance to  him,  and  appointing  a  new  trustee,  might  so  affect  the 
validity  or  operation  of  the  mortgage,  as  to  require  the  pres- 
ence of  the  mortgagee  as  a  party  to  the  bill.  This  is  a  ques- 
tion which  is  certainly  not  meant  to  be  decided  now,  nor  any 
intimation  even  given  of  the  impression  which  may  have  been 
made  upon  the  mind  of  the  court;  all-  that  is  intended  at  this 
time  to  be  said  is,  that  it  is  thought  advisable  that  the  mort- 
gagee should  be  brought  in  as  a  party  ;  and  the  case  will  be 


CHILDS  VS.   SMITH.  483 

ordered  to  stand  over,  with  liberty  to  amend  the  bill  to  that 
effect. 

[The  required  amendment  having  been  made,  and  some  ad- 
ditional testimony,  (not  materially  varying  the  merits  of  the 
case)  having  been  filed,  the  case  was  again  submitted  to  the 
Chancellor,  who  thereupon  passed  a  decree  requiring  Hayes  to 
convey  the  property  in  dispute  to  a  new  trustee,  to  be  held  by 
the  latter  for  the  sole  and  separate  use  of  the  complainant — 
subject  to  the  mortgage  debt  of  Mrs.  Herbert ;  and  said  Hayes 
was  decreed  to  account  with  the  new  trustee  for  the  profits  of 
the  estate  received  by  him,  from  the  time  it  came  into  his  pos- 
session to  the  time  of  his  delivering  it  up  to  the  new  trustee, 
subject  to  such  allowances  as  he  might  prove  himself  enti- 
tled to.] 

[The  decree  in  this  case  was  reversed  upon  appeal.] 


J.  D.  CHILDS  AND  WIFE  ~\ 

vs.  >     DECEMBER  TERM,  1849. 

LUCY  M.  SMITH.          3 

[JURISDICTION — DOWER.] 

IT  is  conclusively  established,  that  a  court  of  equity  may  interfere  by  injunc- 
tion to  prevent  the  commission  of  waste. 

The  objection  to  the  jurisdiction  of  the  Court  of  Chancery  to  stay  waste  com- 
mitted by  a  dowress  on  her  dower  lands,  upon  the  ground,  that  the  remedy 
should  be  sought  on  the  equity  side  of  the  County  Court,  where  the  proceed- 
ings for  partition  were  had,  would  apply  with  equal  force  to  every  appli- 
cation to  enjoin  proceedings  upon  judgments  and  suits  at  law  in  the  county 
courts,  and  is,  therefore,  untenable. 

The  interest  of  the  widow,  is  a  continuation  of  the  seizin  of  her  husband  ;  the 
seizin  of  the  heir  being  defeated  ab  initio,  the  moment  the  certainty  of  the 
estate  to  be  held  by  her  is  ascertained  by  the  assignment. 

The  commissioners  divided  an  estate  into  eight  parts,  and  assigned  a  third  of 
each  division  to  the  widow,  as  her  dower,  one  lot  consisted  almost  entirely 
of  wood,  the  others  of  arable  lands.  HELD — 

That  the  widow  was  not  bound  to  use  each  parcel,  as  if  her  husband  had  died 
seized  only  of  the  one  lot  to  which  such  parcel  belonged  ;  but  might  take 
from  the  wood  lot,  fuel  and  timber  for  the  use  of  the  cultivated  lands. 


484  HIGH  COURT  OF  CHANCERY. 

[Fielder  B.  Smith,  late  of  Calvert  county,  being  possessed 
of  valuable  real  estate  in  said  county,  departed  this  life  in  the 
year  1845,  leaving  a  widow,  Lucy  M.   Smith,  (the  present 
defendant,)   and  several  children   and   the  representatives  of 
other  children,  his  heirs  at  law ;  five  of  them  being  children  of 
the  defendant,  and  the  other  descendants  of  the  deceased  by  a 
former  marriage.     By  proceedings  under  a  commission  for  par- 
tition, issued   out  of  Calvert   County  Court,  the  lands  of  the 
deceased   were  divided   into  eight  parts,  and  assigned  to  the 
parties  entitled ;  a  third  part  of  each  division  having  been  as- 
signed to  the  defendant,  for  her  dower.     One  of  these   eight 
parts  was  allotted  to  Sarah  Ellen  Childs,  sole  representative  of 
Sarah  A.  Smith,  daughter  of  the  deceased  by  his  first  mar- 
riage ;   said   Sarah  Ellen,   together  with  her  husband,  J.  D. 
Childs,  being    the   present   complainants.     The   widow   pos- 
sessed herself  of  the  several  parcels  so  assigned  to  her,  and 
commenced  cutting  from  that  assigned  her  out  of  the  land  of 
the   complainants,   nearly  all  her   fire-wood,  and  fencing  for 
other  portions  of  her  land  ;  removing  a  large  portion  of  fencing 
from  the  land  on  which  she  resided,  and  replacing  it  with  new 
rails  cut  from  her  dower  on  the  complainants'  land.     The  com- 
plainants filed  their  bill  for  an  injunction  to  restrain  her  from 
the  commission  of  further  waste  on  said  land,  charging   her 
with  the  intention  to  benefit  her  own  children,  to  the  injury  of 
the  reversionary  interests  of  her  step-children ;  insisting  that 
she  must  use  each  parcel  of  land  assigned  her,  separately,  and 
denying  her  right  to  cut  more  wood  from  each  than  was  re- 
quired for  the  use  of  the  same.     The  defendant,  by  her  answer, 
denied  the  intention  charged,  and  asserted  her  right  to  use  all 
the  portions  assigned  her  as  one  entire  dower.     She  averred, 
that  the  part  assigned  to  her  out  of  the  share  of  the  complain- 
ants, consisted  almost  entirely  of  wood,  and  was  assigned  to 
her  to  use  in  the  manner  charged,  and  was  only  useful  to  her 
for  that  purpose.     She  also  objected  to  the  jurisdiction  of  the 
court,  first,  because  the  complainants  had  an  adequate  remedy 
at  law,  in  an  action  on  the  case;  and,  secondly,  because  their 
remedy,  if  they  had  any  in  equity,  should  have  been  sought  on 


CH1LDS  VS.  SMITH.  485 

the  equity  side  of  Calvert  County  Court,  where  the  proceed- 
ings for  the  partition  were  conducted  ;  and  moved  for  a  disso- 
lution of  the  injunction. 

This  motion  was  argued  before  the  Chancellor,  who,  in  his 
opinion,  proceeded  first  to  dispose  of  the  objections  above 
mentioned.] 

THE  CHANCELLOR  : 

This  objection,  [the  first,]  did  not  appear  to  me  to  be  tena- 
ble, and  therefore  I  consider  it  proper  to  relieve  the  counsel  for 
the  complainants  from  the  necessity  of  replying  to  the  argu- 
ment in  support  of  it. 

The  bill  alleges,  not  only  the-  commission  of  waste  by  the 
defendant,  the  dowress,  but  an  intention  to  do  so  in  future,  and 
it  seems  to  me  to  be  conclusively  established,  that  a  court  of 
equity  in  such  circumstances,  may  interfere  by  injunction.  1 
Roper  on  Husband  and  Wife,  419,  420,  421  ;  Whitfield  vs. 
Bewit,  2  P.  Wm.,  240.  Chancellor  Kent  says,  that  the  an- 
cient remedies  for  waste  by  writ  of  estrepement,  and  writ  of 
waste  at  common  law,  are  essentially  obsolete,  and  the  modern 
practice  in  this  country, 'as  well  as  in  England,  is  ready  to  re- 
sort to  the  prompt  and  efficacious  remedy  by  an  injunction  bill, 
to  stop  the  commission  of  waste,  when  the  injury  would  be  ir- 
reparable, or  by  a  special  action  on  the  case,  in  the  nature  of 
waste,  to  recover  damages.  4  Kent's  Com.,  77. 

[As  to  the  other  objections,  the  Chancellor  said  :] 

The  reasoning  in  support  of  the  objection,  would  seem  to 
extend  to  every  case  in  which  our  equity  tribunals  are  called 
upon  to  interfere  with  the  progress  of  suits,  or  to  stay  the  exe- 
cution of  judgments  at  law.  The  partition  was  made  under  the 
act  to  direct  descents,  and  the  proceedings  was  on  the  common 
law  side  of  the  County  Court ;  and  no  reason  suggests  itself, 
why  this  court  should,  upon  a  proper  case,  abstain  from  grant- 
ing relief  to  the  complainants,  which  would  not  apply  with 
equal  force  to  every  application  to  it,  to  enjoin  proceedings 
upon  judgments,  and  suits  at  law  in  the  county  courts. 
41* 


486  HIGH  COURT  OF  CHANCERY. 

The  argument  resulting  from  the  convenience  of  the  thing, 
and  the  more  perfect  familiarity  which  the  county  courts,  in 
the  exercise  of  their  equity  jurisdiction,  would  have  of  proceed- 
ings had  in  the  same  courts,  as  courts  of  common  law,  would 
apply  as  well  in  the  one  case,  as  the  other;  and  the  effect 
would  be,  that  this  court  would  be  stripped  of  its  power,  in 
every  case,  of  arresting,  upon  equitable  grounds,  the  proceed- 
ings of  the  courts  of  law.  This  view  of  the  subject  would 
seem  to  render  the  objection  untenable ;  and  I  therefore  dis- 
miss it,  and  proceed  very  briefly  to  examine  the  case  upon  its 
merits,  as  disclosed  by  the  bill  and  answer. 

[After  reviewing  the  facts  of  the  case,  the  Chancellor  pro- 
ceeded.] 

-  v    -.  r 

An  injunction  was  ordered  upon  this  bill,  not  because  I 
adopted,  or  in  any  way  assented  to  this  view  of  the  relative 
rights  of  these  parties,  [that  the  widow  could  only  use  each 
parcel  by  itself,]  but  upon  the  allegation,  that  the  widow, 
abusing  her  right  to  take  from  her  dower  land,  wood  for 
fuel,  fences,  and  other  necessary  purposes,  was  acting  with 
a  view  to  benefit  her  own  children,  at  the  expense  of  her  step- 
children. 

If,  according  to  the  allegation  of  the  bill,  there  was  upon 
each  parcel  of  the  dower  land,  a  sufficient  supply  of  wood  and 
timber  for  its  support ;  and  the  dowress,  for  the  purpose  of 
sparing  that  which  stood  upon  the  land  in  which  her  own 
children  held  the  fee,  was  unnecessarily  cutting  down  and 
using  the  wood  and  timber  which  stood  upon  the  land,  the  in- 
heritance of  which  was  in  her  step-children,  I  thought,  and  still 
think,  it  was  the  duty  of  this  court,  to  interpose  by  way  of  in- 
junction. Though  a  dowress,  like  all  other  tenants  for  life,  has 
a  right  to  take,  what  is  called  reasonable  estovers ;  that  is, 
wood  from  off  the  land  for  fuel,  fences,  &c.,  she  cannot  be  per- 
mitted to  abuse  this  right,  and  especially,  the  court  would  not 
stand  by  and  see  her  abuse  it,  upon  such  motives  as  are  im- 
puted to  her  by  this  bill. 


CHILDS  VS.  SMITH.  48 . 

Upon  examining  the  return  of  the  commissioners,  it  is  by  no 
means  apparent,  that  the  partition  among  the  heirs,  preceded 
the  assignment  of  dower  to  the  widow ;  and  seeing  that  by  the 
27th  section  of  the  act  of  1820,  ch.  191,  the  dower  is  to  be 
ascertained  and  laid  off,  before  the  division  among  the  heirs  is 
made,  it  may  be  very  fairly  inferred,  that  though  the  lines  of 
the  several  lots  may  have  been  previously  run  out  and  laid 
down  ;  yet  still  the  dower  was  ascertained,  and  laid  off,  before 
an  actual  allotment  and  partition  among  the  heirs.  But  at  all 
events,  be  this  as  it  may,  the  act  of  the  commissioners,  in 
laying  down  and  assigning  the  dower,  and  making  partition 
among  the  heirs,  was  not  consummated  and  binding,  until 
their  return  was  ratified  by  the  court,  and,  therefore,  their  whole 
proceedings  in  assigning  dower,  and  making  partition,  may  be 
regarded  as  taking  effect  at  the  same  time. 

I  do  not,  however,  regard  this  question,  as  at  all  material 
to  the  rights  of  the  widow  in  her  dower  lands.  Whether  the 
assignment  of  her  dower  proceeded,  or  followed  the  partition 
among  the  heirs,  in  the  order  of  time,  can,  in  my  judgment, 
have  no  influence  in  determining  the  extent  to  which  she  may 
use  her  lands.  Her  interest  is  a  continuation  of  the  seizin  of 
her  husband  ;  the  seizin  of  the  heir  being  defeated,  ab  initio, 
the  moment  the  certainty  of  the  estate  to  be  held  by  the  widow 
is  ascertained  by  the  assignment.  1  Roper  on  Husband  and 
Wife,  427  ;  4  Kent's  Com.,  69. 

So  soon,  then,  in  this  case,  as  the  particular  lands  which  the 
widow  was  to  hold  for  her  dower,  were  ascertained  by  the 
assignment  of  the  commissioners,  the  right  of  the  heirs  was 
defeated,  whether  the  partition  among  them  had  been  made, 
or  not,  and  the  dowress  was  in,  in  legal  intendment,  of  the 
seizin  of  her  husband. 

The  Chancellor  cannot  subscribe  to  the  doctrine,  that  the 
widow  was  bound  to  use  each  parcel  of  her  dower  land,  as 
if  her  husband  had  died  seized  only  of  the  one  lot,  to 
which  such  parcel  belonged.  The  inconvenience  of  such  a 
rule  would  be  so  severely  felt,  that  nothing  but  the  most  con- 
trolling authority  would  induce  me  to  follow  it. 


HIGH  COURT  OF  CHANCERY. 

In  our  state,  where  the  arable  and  wooded  lands  of  our  land- 
holders are  so  frequently  separated  by  intervening  tracts,  and 
in  which  for  the  advantage  and  convenience  of  all  the  heirs  it 
is  necessary  that  the  dower  of  the  widow  should  be  divided 
into  several  parcels,  the  adoption  of  such  a  rule  would  work 
much  practical  mischief.  Indeed,  I  am  strongly  inclined  to 
think  the  practicability  of  making  equal  partition  of  many 
estates  would  be  frustrated,  if  the  widow  must  either  have  her 
entire  dower  laid  off  in  one  unbroken  parcel,  or  be  subject  to 
the  rule  contended  for,  if  divided  into  separate  parcels. 

No  authority  has  been  .referred  to  in  support  of  the  position, 
and  I  am  persuaded,  none. can! be  found.  The  cases  of  White 
vs.  Willis,  7  Pick.,  143,  and  White  vs.  Cutler,  17  Pick.,  248, 
prore,  that  a  lot  of  wood  land,  separated  from  the  cultivated 
lands,  may  be  included  in  the  assignment  of  dower,  and  when 
so  included,  the  widow  may  take  from  it  fuel  and  timber  for 
the  use  of  the  cultivated  lands. 

-  The  equity  of  this  bill,  as  already  observed,  consists  in 
the  allegation,  that  the  dowress,  having  upon  each  part  of 
her  dower,  wood  and  timber,  sufficient  for  its  support,  was 
without  necessity,  and  for  the  benefit  of  her  own  children,  and 
at  the  expense  of  the  complainants,  cutting  down,  and  using 
the  wood  upon!  their  land,  for  the  use  and  improvement  of  the 
lands,  in  which  the  fee  was  in  her  children.  This  allegation 
is,  however,  expressly  denied  by  the  answer,  and  as  upon  its 
truth,  in  my  opinion,  depends  the  propriety  of  the  injunction  ; 
and  as  the  denial  of  the  answer,  upon  this  motion,  and  in  the 
present  state  of  the  case  (there  being  no  evidence)  is  conclu- 
sive, it  follows,  the  injunction  must  be  dissolved. 

[No  appeal  was  taken  from  this  order.] 


THOMPSEN  VS.  DIFFENDERFER.  489 


LAURENCE  THOMPSEN  ET  AL.     ^ 

vs.  >     DECEMBER  TERM,   1849. 

AUGUSTUS  DIFFENDERFER  ET  AL.3 

[RECEIVER — RULES  OF  EVIDENCE  AND  PRACTICE.] 

THE  court  interposes,  by  appointing  a  receiver  against  the  legal  title,  with 
reluctance,  and  fraud,  or  imminent  danger,  if  the  intermediate  possession 
should  not  be  taken  by  the  court,  must  be  clearly  proved. 

Though  the  court  will  not,  by  the  appointment  of  a  receiver,  deprive  a  prior 
mortgagee,  having  the  legal  title,  of  his  right  of  possession,  it  will  not  permit 
him  to  object  to  such  appointment,  by  any  act  short  of  a  personal  assertion 
of  his  legal  right,  and  taking  possession  himself. 

The  power  of  appointing  a  receiver,  is  a  delicate  one,  and  to  be  exercised 
with  prudence  and  circumspection,  yet,  upon  a  sufficent  cause  stated  and 
proved,  the  court  will  exercise  the  power,  though,  by  so  doing,  the  business 
of  the  defendants  as  merchants  would  be  broken  up. 

It  was  urged,  that  the  defendants  should  be  required  to  offer  proof  in  support 
of  some  of  the  statements  of  the  answer,  though  responsive  to  the  bill ;  be- 
cause such  proof  was  within  their  reach,  whilst  it  was  inaccessible  to  the 
complainants.  HELD — 

That  the  rule,  that  the  answer,  when  responsive  to  the  averments  of  the  bill, 
shall  be  taken  as  true,  unless  discredited  by  two  witnesses,  or  one  witness 
with  pregnant  circumstances,  is  not  subject  to  the  modification  which  the  in- 
troduction of  such  a  principle  would  involve. 

[The  original  and  amended  bills  in  this  case,  were  filed  by 
certain  of  the  creditors  of  the  firm  of  Diffenderfer  and  Brothers, 
against  the  members  of  said  firm,  and  Sampson  Cariss  and 
Catharine  S.  Diffenderfer,  stating  that  the  defendant  first  named 
had  commenced  business  in  the  city  of  Baltimore  about  the 
year  1846,  and  by  falsely  representing  the  extent  of  their 
means,  had  obtained  credit  with  the  several  complainants  and 
others,  to  a  large  amount ;  that  about  the  month  of  October, 
1849,  they  ceased  to  pay  their  debts,  and  afterwards  called  a 
meeting  of  their  creditors,  but  at  the  meeting,  and  at  others 
subsequently  appointed  by  them,  and  in  fact  ever  since,  had  re- 
fused to  exhibit  to  their  creditors  the  state  of  their  affairs,  put- 
ting them  off  on  various  pretences  ;  that  since  their  suspension 
they  had  refused  to  pay  their  creditors  in  whole  or  in  part,  but 
had  been  engaged  in  selling  off  their  goods  for  cash,  and  ap- 


490  HIGH  COURT  OF    CHANCERY. 

propriating  the  proceeds  to  their  own  uses,  and  in  this  manner 
wasting  and  dissipating  their  resources  ;  that  they  had  sent  be- 
yond the  reach  of  their  creditors  large  quantities  of  goods ; 
that  they  had  stated  that  they  had  made  no  transfer  of  their 
stock  of  goods  to  any  one,  nor  created  any  lien  upon  the  same, 
whereas  in  fact  they  had  made  two  several  bills  of  sale  of  their 
whole  stock  of  goods,  the  one  to  Sampson  Cariss  and  the  other 
to  their  mother,  Catharine  S.  Diffenderfer,  to  secure  them  in  large 
sums  of  money,  alleged  to  have  been  loaned  by  them  ;  and  that 
these  liens  were  created  whilst  they  were  insolvent,  and  had  no 
expectation  of  extricating, themselves  from  their  difficulties  ex- 
cept by  taking  the  benefit  of  the  insolvent  laws.  That  at  the 
time  of  calling  together  their  creditors,  the  defendants  (as 
complainants  were  informed)  admitted  their  insolvency ;  and 
that  Catharine  S.  Diffenderfer,  at  the  period  of  the  execution  of 
the  bill  of  sale  to  her  and  for  a  long  time  previous,  was  in  no 
condition,  from  her  own  want  of  means,  to  lend  money.  That 
defendants  had  been  warranted  for  sums  of  money  less  than  a 
hundred  dollars,  and  although  admitting  the  justice  of  the 
claims,  they  had  interposed  injurious  and  improper  obstacles 
to  a  recovery  thereof,  so  that  with  the  utmost  diligence,  judg- 
ments could  not  be  recovered  against  them  before  the  month  of 
May,  1850,  by  which  time  their  assets  would  be  wholly  wasted. 
That  since  the  execution  of  said  bills  of  sale,  the  defend- 
ants had  held  the  property  conveyed  by  them,  or  a  large  por- 
tion thereof,  and  were  selling  the  goods  without  accounting 
with  the  grantees  or  to  any  of  the  creditors,  for  the  proceeds 
of  sale. 

The  bill  concluded  with  a  prayer  for  the  appointment  of  a 
receiver,  and  for  an  injunction  to  restrain  the  defendants  from 
proceeding  with  the  business  of  the  firm.  The  Chancellor 
granted  the  injunction,  but  ordered  the  application  for  the  re- 
ceiver to  stand  over  for  the  corning  in  of  the  answers. 

The  answer  of  the  defendants,  Diffenderfer,  admitted  that 
they  began  business  as  grocers  in  the  city  of  Baltimore,  in 
1846,  and  had  since  continued  to  prosecute  the  same,  but  de- 
nied that  they  had  ever  falsely  represented  to  the  complainants 


THOMPSON  VS.  DIFFENDERFER.  491 

the  state  of  their  affairs,  or  obtained  credit  from  them  or  others 
thereby.  They  admitted  their  liability  to  the  complainants,  but 
denied  that  they  had  ever  ceased  to  carry  on  their  business, 
until  restrained  by  the  injunction,  or  had  ever  discontinued  the 
payment  of  their  just  debts  and  liabilities,  having,  on  the  con- 
trary, applied  their  receipts  to  the  payment  of  large  sums  to 
their  most  importunate  creditors.  They  admitted  having  called 
a  meeting  of  the  creditors  of  the  firm,  their  object  having  been 
to  procure  an  extension  of  time  from  them,  which  they  believed 
would  have  relieved  them  from  their  embarrassments,  and 
stated,  that  at  the  request  of  some  of  the  creditors  present, 
they  undertook  to  prepare  an  exhibit  of  the  state  of  their  af- 
fairs, but  that  some  of  the  complainants  to  whom  they  showed 
the  result,  pronounced  their  statement  false  and  fabricated  ; 
whereupon  they  offered  to  have  their  books  examined  under  the 
supervision  of  one  of  the  clerks  of  the  complainants,  and  had 
always  been  ready  to  do  so  ;  that  their  books  have  ever  been 
open  to  the  inspection  of  their  creditors,  and  that  many  of  them, 
not  parties  to  the  bill,  to  whom  they  had  been  shown,  expressed 
a  willingness  to  continue  their  business  relations  with  them. 
The  defendants  stated,  that  they  were  perfectly  solvent,  and 
had  been  so,  ever  since  they  began  business,  and  never  did 
admit  the  contrary  to  any  one,  nor  did  they  ever  state  that 
they  had  created  no  liens  upon  their  stock,  but  averred  that 
some  of  the  complainants,  at  least,  had  notice  of  said  as- 
signments immediately  after  they  were  made,  that  said  as- 
signments were  not  made  in  fraud  of  creditors,  or  with  intent 
to  take  the  benefit  of  the  insolvent  laws,  but  were  made  to  se- 
cure the  grantees  on  account  of  loans  made  by  them  to  the  de- 
fendants, and  in  compliance  with  promises  made  them  by  de- 
fendants, to  secure  them  in  that  way  whenever  they  should  re- 
quest it ;  and  that  it  was  only  at  the  urgent  request  of  the 
grantees  that  they  had  executed  the  bills  of  sale.  They  stated 
that  they  had  been  selling  off  their  goods  prior  to  the  injunc- 
tion, but  without  any  deviation  from  the  usual  course  of  busi- 
ness, and  had  applied  their  receipts  to  the  payment  of  their 
debts,  or  the  replenishing  their  stock  in  trade ;  and  that 


492  HIGH  COURT  OF  CHANCERY. 

they  had  been  pursuing  a  course  of  rigid  economy  in  their 
private  expenses.  That  they  had  not  at  any  time  sent  out  of 
the  city  of  Baltimore,  any  portion  of  their  stock,  with  the  in- 
tent to  diminish  the  same  or  defraud  their  creditors.  That  their 
mother  was  not,  nor  had  she  been,  in  embarrassed  circum- 
stances, unless  produced  by  the  assistance  she  rendered  to 
them  ;  and  that  instead  of  her  being  supported  by  them,  she 
had  always  refused  to  charge  them  any  thing  for  their  board, 
&c.  They  admitted  that  they  had  been  warranted  for  various 
sums  under  one  hundred  dollars,  and  had  procured  the  re- 
moval of  said  cases  from  the  jurisdiction  of  the  magistrate's 
courts,  and  had  complied  with  such  requirements  as  were  ne- 
cessary to  secure  the  advantages  of  such  proceedings,  but  de- 
nied that  they  had  admitted  that  the  claims  for  which  they 
were  warranted  were  justly  due,  or  that  they  intended  to.  in- 
terpose improper  obstacles  to  their  recovery.  They  stated  that 
it  was  true,  that  if  any  of  their  creditors  were  to  bring  actions 
at  law  against  them,  they  could  not,  by  using  the  utmost  dili- 
gence, obtain  judgments  thereon  before  the  month  of  May, 
1850,  but  that  none  of  the  complainants  had  brought  such  ac- 
tions, and  that  the  assets  of  the  firm  were  not  being  wasted  in 
the  mean  time.  They  admitted  the  retention  of  possession  of 
the  property  conveyed  to  Cariss  and  Mrs.  Diffenderfer,  with 
their  permission,  but  denied  that  the  proceeds  of  the  sales  made 
in  the  due  course  of  their  business  were  not  paid  over  to  the 
grantees  or  other  creditors.  They  stated  that  their  stock  in 
trade  consisted  of  perishable  articles,  and  that  great  losses  to 
them  would  be  produced  by  a  continuance  of  the  injunction  ; 
and  that  no  injunction  bond  had  been  filed  by  the  complainants. 

The  answer  of  these  defendants  having  been  filed,  an  order 
was  passed  by  the  Chancellor,  requiring  the  complainants  to 
file  an  injunction  bond,  and  so  far  modifying  the  injunction  as 
to  permit  the  defendants  to  sell  their  goods  according  to  their 
usual  course  of  business,  and  make  such  new  purchases  as 
•were  necessary,  requiring  them  first  to  give  bond  to  render  an 
account  of  such  sales  and  purchases. 

Testimony  was  afterwards  taken  by  the  complainants  to  sup- 


THOMPSON  VS.  DIFFENDERFER.  493 

port  the  allegation  of  their  bill,  and  the  case  having  been  heard 
on  the  application  for  a  receiver,  and  the  motion  to  dissolve 
the  injunction,  the  Chancellor  delivered  the  following  opinion  :] 

THE  CHANCELLOR: 

This  case  is  brought  before  the  court  upon  the  motion  to  dis- 
solve the  injunction,  in  connection  with  which  the  application 
for  the  appointment  of  a  receiver  has  been  argued  ;  and  it  is 
quite  manifest,  and  has  not  been  controverted,  that  if  the  injunc- 
tion should  be  continued,  it  would  be  proper  and  necessary  to 
put  a  receiver  upon  the  property — and  if,  on  the  contrary,  it 
should  be  thought  proper,  under  the  circumstances,  to  refuse  the 
application  for  a  receiver,  the  injunction  should  be  dissolved, 
as  in  that  event  its  continuance  would  only  embarrass  and  in- 
jure the  defendants  in  the  prosecution  of  their  business  without 
benefit  to  any  one. 

The  question  to  be  considered,  therefore,  is,  whether  under 
the  circumstances  of  this  case,  a  receiver  should  or  should  not 
be  appointed  ? 

In  the  case  of  Williamson  vs.  Wilson,  1  Bland,  418,  the  late 
Chancellor  laid  down  with  precision,  and,  as  I  think,  in  entire 
conformity  with  the  authorities,  the  principles  which  should 
govern  the  court  upon  applications  similar  to  the  present.  It 
was  there  said,  that  "the  court  reluctantly  interfered  against  the 
legal  title  only  in  the  case  of  fraud  clearly  proved,  and  of  immi- 
nent danger ;  and  a  receiver  will  not  be  appointed  when  the 
matter  depends  upon  the  legal  title,  unless  strong  grounds  are 
shown,  and  the  rents  and  profits  are  in  imminent  danger."  In 
Lloyd  vs.  Passingfiam,  16  Ves.,  69,70,  Lord  Eldon  said,  "the 
court  interposes  by  appointing  a  receiver  against  the  legal  title 
with  reluctance,  compelled  by  judicial  necessity,  the  effect  of 
fraud  clearly  proved,  and  imminent  danger,  if  the  intermediate 
possession  should  not  be  taken  under  the  care  of  the  court." 
In  the  case  of  The  Orphans*  Asylum  vs.  McCartee,  1  Hopkins, 
435,  it  was  said,  "the  fund  must  be  shown  to  be  in  danger 
before  a  receiver  will  be  appointed."  "The  court  never  ap- 
VOL.  i — 42 


494  HIGH  COURT  OF  CHANCERY. 

points  a  receiver  merely  because  the  measure  can  do  no  harm." 
"This  principle  reconciles  the  cases  found  in  the  books." 

The  bill  in  this  case  alleges  a  variety  of  facts,  which  do  show 
the  fund  to  be  in  danger,  and  if  proved  to  be  true,  or  admitted, 
would  be  sufficient  to  overcome  the  reluctance  of  the  court  to 
interpose  against  the  legal  title,  and  take  the  possession  of  the 
property  under  its  care,  as  a  measure  of  safety.  It  alleges,  that 
the  defendants,  the  Diffenderfers,  are  insolvent,  and  wasting  and 
misapplying  the  property  from  which  the  creditors  could  only 
expect  to  be  paid  ;  and  there  would  seem  to  be  no  doubt  of  the 
power,  and  the  duty  of  the  court  to  interpose  in  such  a  case, 
even  against  the  opposition  of  the  mortgagees,  Cariss  and  Ca- 
tharine R.  Diffenderfer ;  for  though  in  the  case  of  a  prior  mort- 
gagee, having  the  legal  title,  the  court  will  not,  by  the  appoint- 
ment of  a  receiver,  deprive  him  of  his  right  of  possession,  it 
will  not  permit  him  to  object  to  such  appointment  by  any  act 
short  of  a  personal  assertion  of  his  legal  right,  and  taking  pos- 
session himself.  Silan  vs.  The  Bishop  of  Norwich,  3  Swans., 
112—115. 

And  as  the  defendants,  the  mortgagees  in  this  case,  do  not 
propose  exerting  their  legal  rights  by  taking  possession  ;  but, 
on  the  contrary,  express  their  willingness  and  consent  that  the 
mortgagors  shall  continue  in  possession  of  the  property,  and 
employ  and  dispose  thereof  in  their  business,  it  follows  that  the 
mere  existence  of  the  mortgages  executed  for  their  security, 
would  not  induce  the  court  to  forbear  from  appointing  a  receiv- 
er, if,  independently  of  such  mortgages,  it  would  be  proper  to 
do  so. 

The  question,  therefore,  is,  have  the  complainants  made  out 
by  clear  proofs,  or  admissions,  such  a  case  as,  according  to  the 
established  principles  regulating  this  branch  of  the  jurisdiction 
of  this  court,  entitles  them  to  its  interposition  in  their  behalf, 
by  appointing  a  receiver  ? 

It  is  conceded  that  the  power  is  a  delicate  one,  and  to  be  ex- 
ercised with  prudence  and  circumspection  ;  and  there  can  be  no 
doubt  that  in  the  case  of  a  commercial  firm  actually  engaged 
in  trade,  the  power  of  the  court,  as  invoked  upon  the  present 


•\ 


THOMPSON  VS.  DIFFENDERFER.  495 

occasion,  could  only  be  vindicated  by  an  unusual  and  pressing 
emergency,  which  would  leave  it  no  alternative.  The  absolute 
necessity  of  putting  its  hand  at  once  upon  the  property,  to  save 
it  from  destruction  or  loss,  must  be  clearly  shown,  or  in  the 
language  of  Lord  Eldon,  "fraud  or  imminent  danger,  if  the  in- 
termediate possession  should  not  be  taken  by  the  court,  must 
be  clearly  proved." 

In  this  case,  as  before  observed,  there  can  be  no  doubt  that 
the  facts  charged  in  the  bill  do  present  an  aspect  of  imminent 
danger,  and  contemplated,  if  not  actual  fraud,  which  would 
constitute  the  judicial  necessity  that  would  justify  the  court  in 
putting  forth  its  power  to  preserve  the  property,  by  the  strong 
measure  of  taking  possession  of  it ;  though  by  so  doing  the 
business  of  the  defendants,  as  merchants,  would  be  broken  up. 
But  the  facts  charged  in  the  bill  are  denied  by  the  answer  of 
the  Diffenderfers,  and  though  a  strong  effort  has  been  made  to 
break  down  the  answer,  by  exhibiting  supposed  inconsistencies 
and  contradictions  in  its  several  statements,  and  dwelling  with 
emphasis  upon  the  improbability  of  some  of  the  facts  averred 
in  it,  I  cannot,  after  a  careful  examination,  bring  myself  to  the 
conclusion,  that  it  is  not  entitled  tp  the  weight  usually  allowed 
to  answers  in  chancery. 

I  do  not  find  in  it  any  statements  which  may  not  reasonably 
be  reconciled  with  other  statements  contained  in  it ;  and  with 
regard  to  the  argument  founded  upon  the  assumed  improba- 
bility of  its  truth,  it  may  be  observed,  that  the  defendants  have 
spoken  under  the  solemn  responsibility  of  an  oath,  and  with  all 
the  penalties,  temporal  and  eternal,  of  perjury,  full  before  them. 
Under  the  weight  of  these  heavy  sanctions,  they  have  denied 
each  and  all  of  the  allegations  of  the  bill,  upon  the  admission 
or  proof  of  which,  the  right  of  the  court  to  appoint  a  receiver 
depended. 

It  has  been  urged,  that  with  respect  to  some  of  the  statements 
of  the  answer,  though  responsive  to  the  bill,  the  defendant 
should  be  required  to  offer  proof  in  their  support ;  because 
such  proof  was  within  their  reach,  whilst  it  was  inaccessible  to 
the  complainants.  But  I  apprehend,  the  rule  that  the  answer, 


496  HIGH  COURT  OF  CHANCERY. 

when  responsive  to  the  averments  of  the  bill,  shall  be  taken  as 
true,  unless  discredited  by  two  witnesses,  or  one  witness  with 
pregnant  circumstances,  is  not  subject  to  the  modification  which 
the  introduction  of  such  a  principle  would  involve.  The  rule 
rests  upon  a  principle  which  protects  it  from  the  modification 
insisted  upon,  and  that  is,  that  the  complainant,  by  addressing 
himself  to  the  conscience  of  the  defendant,  makes  him  a  wit- 
ness, and  must  take  his  answer  as  true,  unless  he  can  overcome 
it  in  the  way  suggested. 

Finding,  then,  that  the  allegations  of  the  bill  were  denied  by 
the  answer,  I  looked  carefully  into  the  evidence  taken  under 
the  order  of  the  court,  to  see  how  far  the  complainants  had 
been  successful  in  proving  their  case  ;  and  without  here  analyz- 
ing the  evidence,  or  going  into  a  detailed  examination  of  it,  I 
deem  it  sufficient  to  say,  that  I  do  not  think  it  sufficient  to  over- 
come the  denials  of  the  answer.  Several  of  the  witnesses,  it  is 
admitted,  are  incompetent,  and  their  depositions  are  excluded 
from  the  inquiry.  My  attention  has  been  directed  to  the  com- 
petent proof,  and  that,  I  think,  is  insufficient.  The  motion  for 
a  receiver  must  be  refused,  and  the  injunction  dissolved. 

[No  appeal  was  taken  from  this  order.] 


LEVI  L.   TAYMON 

vs.  £.     DECEMBER  TERM,  1849. 

JOHN  MITCHELL  ET  AL. 

[WARRANTY — JURISDICTION.] 

THOUGH  the  seller  of  a  chattel  of  which  he  has  the  possession,  warrants  the 
title,  he  is  not  bound  to  answer  for  the  quality,  unless  he  expressly  warrants 
the  goods  to  be  sound  and  good,  or  unless  he  makes  a  fraudulent  misrepre- 
sentation, or  uses  some  fraudulent  concealment  concerning  them,  which 
amounts  to  a  warranty  in  law. 

An  assertion  respecting  an  article,  must  be  positive  and  unequivocal,  and  one 
on  which  the  buyer  places  reliance,  in  order  to  amount  to  a  warranty.  And 
if  the  vendee  has  an  opportunity  of  examining  the  article,  the  vendor  is  not 


TAYMON  VS.  MITCHELL.  497 

liable  for  any  latentjiefect,  without  fraud  or  an  express  warranty,  or  such  a 
direct  representation  as  is  tantamount  to  it. 

Every  mere  false  assertion  of  value,  when  no   warranty  is   intended,  will  not  / 
constitute  a  ground  of  relief  to   the  purchaser.    If  the   assertion  is  a  mere     | 
matter  of  opinion,  in  which  parties  mayjiiffer^.pr  if  the  seller  indulge  in  the     J 
^ommoiflanguage  of  puffing,  it  will  not  amount  to  a  warranty. 

But,  if  a  party  undertakes  to  make  a  direct  representation  of  a  fact,  even 
though  he  be  mistaken  as  to  the  fact,  if  the  other  party  is  induced  to  act 
upon  such  representation,  equity  will  relieve  against  the  act,  equally  as  if  it 
had  been  a  wilful  and  false  assertion,  for  the  injury  is  the  same. 

Though  the  means  of  correct  information  be  equally  open  to  both  parties,  yet, 
if  either  of  them  does,  or  says  any  thing,  Jendimjjo  impose  upon  the  other, 
an4Jie  is^impjjsgd  upon  to  his  injury,  the  contract  will  not  be  allowed  to 
stand. 

In  the  case  of  a  breach  of  warranty,  the  vendee  may  sue  upon  it,  without  re- 
turning the  goods,  or  rescind  the  contract  by  returning  them,  or  the  offer  to 
return  them  in  a  reasonable  time,  so  that  the  seller  is  placed  in  statu  quo  and 
sue  for,  and  recover  back,  the  purchase  money,  in  an  action  for  money  had 
and  received. 

What  is  a  reasonable  time,  within  which  the  purchaser  must  rescind  the  con- 
tract, by  a  return  of,  or  an  offer  to  return,  the  thing  purchased,  does  not  ap- 
pear to  be  stated  in  the  books.  The  time,  however,  is  to  be  computed  from 
the  period  when  the  unsoundness  is  discovered,  and  not  from  the  date  of  the 
contract. 

An  offer  to  return  negroes  found  to  be  unsound,  made  within  a  month  after  the 
sale,  and  as  soon  as  their  unsoundness  was  discovered,  was  held  to  be  within 
a  reasonable  time. 

An  offer  to  return  the  chattels  within  a  reasonable  time,  is  equivalent  in  its 
effect  upon  the  remedy,  to  an  offer  accepted  by  the  seller. 

In  a  case  of  misrepresentation  of  facts,  whether  made  with  a  knowledge  of 
their  untruth ,  and  wltFintent  to  defraud,or  made  inadvertently  by  mutual  mis- 
take of  parties,  or  by  mistake  of  either  of  them,  if  the  other  has  been  preju- 
diced thereby,  a  court  of  equity  has  jurisdiction,  and  will  set  aside  the  con- 
tract and  declare  it  a  nullity. 

A  court  of  equity  has  concurrent  jurisdiction  with  courts  of  law,  in  all  cases 
of  fraud  and  damage,  and  it  makes  no  difference,  that  the  sale  sought  to  be 
rescinded  on  the  ground  of  fraud,  was  a  sale  of  personal  property. 

[The  bill  was  filed  in  this  case  on  the  3d  of  October,  1848,  to 
vacate  a  sale  of  negroes  made  by  the  administrator  of  James 
Mitchell,  deceased,  to  the  complainant,  on  or  about  the  1st  of 
May  in  that  year. 

The  bill  charged  the  defendants  with  having  made  fraudulent 

misrepresentations  of  the  value  and  condition  of  the  negroes ; 

they  having  stated  that  they  were  appraised  in  the  inventory  at 

twelve  hundred  dollars,  when  they  were  in  fact  only  appraised 

42* 


498  HIGH  COURT  OF  CHANCERY. 

at  seven  hundred  and  fifty  dollars ;  and  that  they  were  of  sound 
and  healthful  constitutions,  when  they  were  radically  and  per- 
manently diseased.  The  complainant  stated,  that  the  negroes 
had  been  of  very  little  service  to  him,  requiring  frequent  care 
and  medical  attendance,  and  that  one  of  them,  an  infant,  died 
before  the  bill  was  filed  ;  and  that  as  soon  as  he  ascertained 
their  unhealthy  condition,  which  was  about  a  month  after  the 
sale,  he  applied,  without  success,  to  the  defendants  to  take 
them  back,  and  to  return  the  securities  given  for  the  payment  of 
the  purchase  money,  consisting  of  certain  single  bills  by  him 
assigned  to  them. 

The  bill  prayed  that  the  sale  might  be  vacated  as  fraudulent, 
and  the  administrators  restrained  by  injunction  from  assigning 
or  collecting,  and  the  makers  from  paying,  the  single  bills 
given  by  the  complainant  for  the  purchase  money  ;  which  in- 
junction was  granted  by  the  Chancellor. 

The  answer  denied  most' of  the  averments  of  the  bill,  and 
testimony  was  taken  under  a  commission,  the  effect  of  which 
is  stated  by  the  Chancellor  ;  who,  after  hearing  the  arguments 
of  counsel,  delivered  the  following  opinion:] 

THE  CHANCELLOR  : 

The  case  has  been  fully  and  very  well  discussed  at  the  bar ; 
and  the  court  has  bestowed  upon  it  all  the  reflection  which  its 
importance  and  the  considerations  connected  with  it  require. 

That  the  negroes  were  diseased  prior  to,  and  at  the  time  of 
the  sale,  and  since  ;  and  that  the  price  paid  for  them  greatly 
exceeded  their  value,  has,  I  think,  been  incontestibly  estab- 
lished by  the  proof.  And  it  is  also  clearly  shown,  that  the 
complainant  purchased  them  under  the  erroneous  impression 
that  they  were  sound  and  healthy  negroes  ;  the  price  being  a 
full  one  for  slaves  of  that  description. 

And  hence,  in  my  judgment,  it  follows,  that  justice  requires 
the  recision  of  the  contract  of  purchase,  unless  it  appears  that 
the  complainant,  by  some  act  of  commission  or  omission  on 
his  part,  has  forfeited  his  title  to  relief;  or  unless  it  can  be 
shown,  that  blindly  relying  upon  his  own  judgment,  he  made 


/i 


TAYMON  VS.  MITCHELL.  499 

the  purchase  without  respect  to,  or  confiding  in,  the  statements 
and  representations  made  to  him  of  their  condition  and  value, 
prior  to,  and  at  the  time  of  the  purchase. 

The  rule  is,  that  though  the  seller  of  a  chattel,  of  which  he  "^ 
has  the   possession,  is  ordinarily  understood  to   warrant  the   '• 
title,  he  is  not  bound  to   answer  for  the  quality,  unless  under 
special  circumstances  ;  unless  he  expressly  warrants  the  goods 
to  be  sound  and  good,  or  unless  he  makes  a  fraudulent  repre- 
sentation, or  uses  some  fraudulent  concealments    concerning 
them,  which  amounts   to  a  warranty  in  law.     2  Kent's  Com,, 

478-  . 

It  is  not  meant  to  be  asserted,  that-  every  mere  false   asser- 
tion of  value,  when  no  warranty  is  intended,  will  be  a  ground 
to  relieve  a  purchaser.     If  the  assertion   is   a  mere  matter  of 
opinion,  in  which  parties  may  differ  —  or  if  the  seller  indulge  in 
the  common  language  of  puffing,  it  will  not  amount  to  a  war- 
ranty.    For,  as  expressed  in  the  common  maxim,  simplex  com- 
mendatio   non  obligat.     According   to    Mr.   Chancellor  Kent, 
"an  assertion  respecting  an  article  must  be  positive  and  une-'> 
quivocal,  and  one  on  which  the  buyer  places  reliance,  .in  order 
to  amount  to  a  warranty.     And  if  the  vendee  has  an  opportu-  ( 
nity  of  examining  the  article,  the  vendor  is  not  answerable  for  / 
any  latent   defect,  without   fraud,  or  an  express   warranty,  or': 
such  a  direct  representation  as  is  tantamount  to  it."     2  Kent's) 
Com.,  485. 

But  if  a  party  undertakes  to  make  a  direct  representation  of 
a  fact  —  even  though  he  be  mistaken  as  to  the  fact  —  if  the 
other  party  is  induced  to  act  upon  such  representation,  equity 
will  relieve  against  the  act  equally  as  if  it  had  been  a  wilful 
and  false  assertion  —  for  the  injury  is  the  same.  McFerran  vs. 
Taylor  and  Massie,  3  Cranch,  270. 

As  remarked  by  Chief  Justice  Marshall,  in  delivering  the 
opinion  of  the  court  in  that  case,  "he  who  sells  property  on  a 
description  given  by  himself,  is  bound  to  make  good  that  de- 
scription ;  and  if  it  be  untrue  in  a  material  point,  though  the 
variance  be  occasioned  by  mistake,  he  must  still  remain  liable 
for  that  variance.' 


500  HIGH  COURT  OF  CHANCERY. 

The  Court  of  Appeals  of  this  state  in  the  case  of  Joyce  and 
Vife  vs.  Taylor,  6  G.  #  J.,  64,  said  "that  if  a  party  under- 
takes to  make  a  statement  of  facts  as  true,  without  a  know- 
ledge of  their  truth  or  falsehood,  and  they  operate  to  the  decep- 
tion of  the  other  party,  and  thereby  induce  him  to  do  what  he 
would  not  otherwise  do,  it  will  be  avoided.  The  gist  of  the 
inquiry  being,  not  whether  the  party  making  the  statement 
knew  it  to  be  false,  but  whether  the  statement  made  as  true, 
was  believed  to  be  true  ;  and,  therefore,  if  false,  deceived  the 
other  party  to  whom  it  was  made." 

These  principles  relieve  the  court  in  this  case  from  the 
necessity,  always  an  unpleasant  one,  of  deciding  whether  the 
representations  made  to  the  complainant  in  regard  to  the  ap- 
praisement of  these  slaves,  and  their  condition  of  bodily  health, 
were  wilful  and  false  assertions,  or  not.  That  such  represen- 
tations were  made,  and  that  they  were  untrue  in  point  of  fact, 
is  to  my  mind  too  clearly  proved  to  be  disputed  successfully. 
And  I  am  quite  satisfied  that  reliance  was  placed  by  the  pur- 
chaser upon  these  representations,  and  that  they  influenced  his 
judgment  in  making  the  purchase. 

Whether  known  to  the  vendor  to  be  untrue,  or  not,  the  mis- 
representation was  of  something  material,  constituting  an  in- 
ducement to  the  purchaser,  and  in  which  he  placed  confidence, 
and  was  misled  to  his  injury.  These  afford,  according  to  the 
authorities,  good  ground  of  relief.  1  Story's  Equity,  sections 
193,  194,  195,  197. 

It  has  been  urged,  however,  in  this  case,  that,  especially 
with  reference  to  the  appraisement  of  the  negroes,  the  means 
of  information  were  equally  accessible  to  both  parties,  and  that 
it  was  the  folly  of  the  purchaser  not  to  look  at  the  record  and 
inform  himself. 

But  the  rule,  as  laid  down  by  Chancellor  Kent,  vol.  2,  sec. 
39,  page  484,  and  to  which  the  commendation  of  Mr.  Justice 
Story  gives  additional  weight,  appears  to  be,  that  though  the 
means  of  correct  information  be  equally  open  to  both  parties, 
yet,  if  either  of  them  does  or  says  anything,  tending  to  impose 
upon  the  other,  and  he  is  imposed  upon  to  his  injury,  the  con- 
tract will  not  be  allowed  to  stand. 


TAYMON  VS.  MITCHELL.  501 

Being  of  opinion,  therefore,  in  this  case,  that  the  misrepre- 
sentation, whether  known  to  be  false  or  not,  was  of  matter  ma- 
terial to  the  contract,  and  upon  which  the  purchaser  relied,  and 
by  which  he  was  misled  to  his  injury,  the  sale  must  be  rescind- 
ed, unless  the  purchaser  since  the  sale  has  done,  or  forborne  to 
do,  some  act  essential  to  the  assertion  of  his  rights,  or  unless  he 
is  attempting  to  vindicate  them  in  the  wrong  forum. 

The  rule  as  laid  down  in  the  books  is,  that  where  goods  are  - 
discovered  not  to  answer  the  order  given  for  them,  or  to  be  un- 
sound, the  purchaser  ought  in  a  reasonable  time  to  return  them 
to  the  vendor,  or  to  give  him  notice  to  take  them  back,  and 
thereby  rescind  the  contract,  or  he  will  be  presumed  to  acqui- 
esce in  their  quality.  And  in  the  case  of  a  breach  of  warranty, 
he  may  sue  upon  it  without  returning  the  goods  ;  or  rescind  the 
contract  by  returning  them,  or  the  offer  to  return  them  in  a 
reasonable  time,  so  that  the  seller  is  placed  in  statu  quo  ;  and 
sue  for,  and  recover  back  the  purchase  money,  in  an  action  for 
money  had  and  received.  2  Kent,  480 ;  Franklin  and  Jlrmfield 
vs.  Long,  7  G.  £  J.,  407. 

What  is  a  reasonable  time,  within  which  the  purchaser  must 
rescind  the  contract,  by  a  return  of,  or  offer  to  return,  the  thing 
purchased,  does  not  appear  to  be  stated  in  the  books.  The 
time,  however,  is  to  be  computed  from  the  period  when  the  un- 
soundness  of  the  chattel  is  discovered,  and  not  from  the  date  of 
the  contract. 

The  bill  in  the  case  alleges,  that  so  soon  as  the  purchaser 
discovered  the  slaves  to  be  unsound,  that  is,  about  one  month 
after  the  sale,  and  before  the  death  of  the  infant,  he  complained 
thereof  to  the  vendor,  John  Mitchell,  and  required  him  to  can- 
cel the  sale  and  take  back  the  negroes,  and  return  the  consider- 
ation which  had  been  paid  for  them,  which  he  refused  to  do. 

The  proof  upon  this  point  is,  that  in  or  about  one  month  after 
the  sale ;  that  is,  about  the  1st  of  June,  1848,  the  complainant 
went  to  the  defendant,  John  Mitchell,  to  get  him  to  take  the 
negroes  back,  which  the  defendant  said  he  could  not  do — the 
court  would  not  allow  him.  Afterwards,  on  or  about  the  20th 
of  September,  1848,  the  complainant  again  went  to  the  same 


502  HIGH  COURT  OF  CHANCERY. 

party  to  get  him  to  take  them  back.  The  first  offer  to  return 
the  negroes,  was  before  the  death  of  the  infant,  who  died  in 
July  of  the  same  year. 

There  is,  to  be  sure,  some  contradictory  proof  on  this  point, 
but  the  evidence  of  a  witness  affirming  that  he  heard  a  state- 
ment made  in  a  conversation  between  parties,  cannot  well  be 
overthrown  by  proof  that  another  witness  was  present,  who  did 
not  hear  the  same  thing.  The  witness  who  proved  the  fact  in 
this  case,  stands  altogether  free  from  suspicion,  and  is  unim- 
peached  as  to  veracity  ;  and  without  intending  to  cast  any  dis- 
credit upon  the  witness  who  says  he  did  not  hear  the  remarks, 
and  who  I  am  well  assured,  did  not  hear  them,  I  am  satisfied 
that  they  wer£  made,  and  that  such  prior  offer  was  made.  The 
answer  of  the  defendant,  John  Mitchell,  also  denies  the  prior  offer 
to  return  the  negroes,  but  I  am  persuaded  Mr.  Mitchell  must 
have  forgotten  the  fact  at  the  time  his  answer  was  prepared. 

The  presumptions  in  favor  of  the  statement  of  the  witness 
Gantt  upon  this  point  are  so  strong,  that  I  considered  it  my 
duty  to  give  credence  to  it ;  and'  hence,  I  assume,  that  about 
one  month  from  the  date  of  the  purchase,  the  complainant  did 
offer  to  return  the  negroes,  and  cancel  the  contract  of  sale  ;  and 
the  question  then  is,  whether  this  offer  is  sufficient  to  enable  the 
court  to  vacate  the  sale,  and  restore  the  parties  to  their  original 
condition. 

It  cannot,  I  think,  be  maintained,  that  the  offer  to  return  the 
negroes  within  the  month,  was  not  within  a  reasonable  time ; 
neither,  I  presume,  can  it  well  be  contended,  that  the  purchaser 
is  under  an  obligation  to  institute  his  action  immediately  after 
the  vendor  refuses  to  take  the  property  back  and  refund  the 
money.  An  offer  to  return  the  chattels  in  a  reasonable  time  on 
breach  of  warranty,  is  equivalent  in  its  effect  upon  the  remedy 
to  an  offer  accepted  by  the  seller,  and,  therefore,  assuming  in 
this  case,  that  the  offer  was  made  in  June,  1848,  I  am  to  treat 
the  case  as  if  the  offer  had  been  accepted,  and  the  negroes  ac- 
tually taken  back  by  the  vendor.  If  such  had  been  done,  there 
can  be  no  doubt  that  the  complainant  would  not  have  lost  his 
remedy,  by  forbearing  to  resort  to  legal  proceedings,  until  Oc- 


TATMON  VS.  MITCHELL.  503 

tober  of  the  same  year,  when  this  bill  was  filed.    Thornton  vs. 
Wynn,  12  Wheat.,  183. 

At  the  time  this  offer  was  made,  all  the  negroes  were  living, 
and  if  it  had  been  accepted  by  the  defendant,  the  parties  would 
have  been  placed  in  statu  quo.  That  the  infant  has  since  died, 
and  that  they  cannot  to  that  extent  be  placed  in  the  same  situa- 
tion,- is  the  defendant's  own  fault,  of  which,  of  course,  he  can- 
not complain. 

That  the  complainant  repeated  the  offer  in  the  presence  of  a 
witness  in  September,  1848,  the  rights  of  third  parties  not  hav- 
ing intervened,  and  nothing  more  having  been  done  by  him 
than  simply  keeping  possession  of  the  property,  cannot,  I  think, 
impair  or  take  away  his  rights.  And,  therefore,  if  he  had  the 
right  to  come  into  this  court  for  redress,  that  right  remains  now 
in  full  force  and  effect. 

It  has  been  said,  and  the  assertion  has  received  the  sanction 
of  some  of  the  most  eminent  judges   known  to  any  age,  that 
fraud  and  damage  coupled  together  will  entitle  the  injured  party 
to  relief  in  any  court  of  justice.     And  it  was  observed  by  Lord 
Eldon,  in  Evans  vs.  Bicknell,  6  Ves.,  182,  183,  "that  if  a  rep-  ^ 
resentation  is  made  to  another,  going  to  deal  in  a  matter  of  *\ 
interest  upon  the  faith  of  that  representation,  the  former  shall 
make  the  representation  good,  if  he  knew  that  representation  to 
be  false  ;  and  that  if  there  was  a  jurisdiction  at  law  upon  the 
doctrine,  there  was  a  concurrent  jurisdiction  in  equity."     The 
observation  here  is,  if  the  party  making  the  representation  "knew 
it  to  be  false,"  but  upon  the  principle  of  the  decision  in  Joyce 
and  wife  vs.  Taylor^  before  referred  to,  the  party  will  be  equal- 
ly bound  by  his  representation,  whether  he  knew  it  to  be  false 
or  not,  provided  the  other  party  believed  in  its  truth,  and,  if  it 
is  false,  is  deceived  by  it.     For,  as  Mr.  Justice  Story  says,  "the 
affirmation  of  what  one  does  not  know  or  believe  to  be  true,  is 
equally  in  morals  and  law  as  unjustifiable,  as  the  affirmation  of 
what  one  knows  to  be  positively  false."  1  Story's  Eq.,  sec.,  193. 
Now,  it  may  very  well  be,  that  the  defendant,  John  Mitchell, 
did  not  know  what  was  the  condition  of  those  negroes  with 
reference  to  their  health.     Indeed,  one  of  his  own  witnesses 


504  HIGH  COURT  OF  CHANCERY. 

says,  that  when  interrogated  by  the  complainant  upon  that  sub- 
ject, he  said  "he  knew  very  little  about  them,"  and  referring 
him  to  another  party  for  information,  said,  "he"  (the  complain- 
ant) "must  examine  for  himself." 

The  same  statement  is  repeated  in  the  answer,  in  which  the 
defendant  says,  he  expressly  told  the  complainant  "he  knew 
very  little  of  them,  and  that  he  had  rarely  seen  them."  .The 
answer  contains  a  positive  denial  that  the  defendant  gave  any 
assurances  or  made  any  statements  touching  the  soundness  or 
health  of  the  negroes — and  yet  there  is  in  it  an  unequivocal  as- 
sertion, that  "the  negroes  were  sound  and  healthful  at  the  time 
of  the  sale,  and  were  worth  the  sum  of  thirteen  hundred  dol- 
lars." 

It  is  not  easy  to  reconcile  this  positive  declaration  of  the 
health  and  value  of  the  negroes,  in  the  answer,  with  the  state- 
ment that  he  knew  very  little  of  them  and  had  rarely  seen  them  ; 
but  it  leads  one  strongly  to  believe  that  the  defendant  did  in- 
cautiously venture  to  make  statements  at  the  time  of  the  sale, 
respecting  their  soundness,  without  having  the  requisite  infor- 
mation upon  the  subject ;  and  when  to  this  presumption,  fairly, 
as  I  think,  arising  upon  what  he  says  in  his  answer,  is  added 
the  proof  offered  upon  this  point  by  the  complainant,  it  seems 
to  me  that  no  reasonable  doubt  can  be  entertained  in  regard  to 
it. 

Here,  then,  is  a  case  in  which  the  complainant  has  been  in- 
duced to  purchase  a  family  of  incurably  diseased  slaves,  upon 
representations  made  to  him  by  the  vendor,  that  they  were 
sound  and  healthy ;  and  for  a  price  fully  equal  to  their  value  if 
the  representation  had  been  true.  That  he  confided  in,  and 
was  misled  by  these  representations  to  a  certain  extent,  I  have 
no  doubt;  and  whether  they  were  made  with  knowledge  of 
their  untruth,  and  with  intent  to  defraud,  or  whether  the  vendor, 
without  proper  consideration,  ventured  to  make  them,  without 
knowing  whether  they  were  or  were  not  true,  is  immaterial. 

The  title  of  the  purchaser  to  relief  in  this  court,  upon  either 
alternative,  is  equally  perfect,  as  is  abundantly  established  by 
the  authorities  which  have  been  referred  to,  and  by  many  others 


TAYMON  VS.  MITCHELL.  505 

which  could  readily  be  found.     Daniel  vs.    Mitchell,  1  Story, 
C.  C.,  172  ;  Ainsley  vs.  Medlycot,  9  Fes.,  21,  note  a. 

The  principle  appears  to  be,  that  in  a  case  of  misrepresen- 
tation of  facts,  though  inadvertently  made,  by  mutual  mistake 
of  parties,  or  by  mistake  of  either  one  of  them,  if  the  other 
has  been  prejudiced  thereby,  a  court  of  equity  will  set  it  aside 
and  declare  it  a  nullity. 

The  jurisdiction  of  the  court  is  supposed  to  be  clearly  estab- 
lished by  the  cases  of  Evans  vs.  Bicknell,  6  Vesey,  174  ;  Bur- 
rowes  vs.  Lock,  10  Vesey,  470;  Bacon  vs.  Bronson,  7  Johns. 
Ch.  Rep.,  201. 

It  has  been  urged  that  this  case  is  not  unlike  the  case  of  Al- 
bert and  wife  vs.  The  Savings  Bank  of  Baltimore,  recently  de- 
cided by  this  court,  and  referred  to  in  the  argument.  It  seems 
to  me,  however,  to  be  totally  dissimilar. 

That  was  a  case  in  which  the  bank,  contrary  to  the  pro- 
visions of  its  charter,  had  loaned  a  sum  of  money  to  one  of  its 
directors.  The  contract,  though  forbidden  by  its  charter,  was 
fairly  and  bona  fide  entered  into,  without  the  slightest  taint  of 
fraud  or  misrepresentation  affecting  its  morality.  The  money 
loaned  by  the  bank  to  the  director,  had  been  enjoyed  by  him, 
and  not  being  paid  at  the  time  stipulated,  the  bank  sold  the  se- 
curities held  by  it  in  pledge,  and  reimbursed  itself.  There 
could  be  no  pretence,  it  seemed  to  me,  ex  eequo  et  bono,  to 
compel  the  bank  to  pay  back  this  money,  either  to  the  party 
who  borrowed  it  or  to  any  one  else.  Though  the  bank  could 
not  have  recovered  the  money  from  the  borrower,  because  of 
the  legal  inhibition  to  make  the  loan,  yet  still  in  foro  conscien- 
tice,  it  was  due,  and  being  paid,  no  court  of  justice  would  lend 
its  aid  to  compel  its  return.  It  would  be  repugnant  to  the 
plainest  principles  of  justice. 

But  in  this  case,  though  the  contract  has  been  performed  by 
the  delivery  of  the  property  and  payment  of  the  consideration, 
yet,  as  its  performance  was  the  result  of  imposition,  whether 
designed  or  not,  practiced  upon  the  purchaser,  is  immaterial — 
the  court  will  rescind  it,  and  place  the  parties  in  their  original 
situation.  In  all  the  cases  in  which  the  contract  has  been  re- 
VOL.  i — 43 


506  HIGH   COURT  OF   CHANCERY. 

scinded,  either  by  the  act  of  the  party  or  the  decree  of  the 
court,  the  property  had  been  delivered  and  the  consideration 
paid.  Otherwise  the  court  in  a  great  majority  of  cases,  would 
be  powerless  to  afford  relief  when  the  object  of  the  fraud  had 
been  accomplished. 

It  has  been  supposed,  that  this  being  a  sale  of  personal  es- 
tate, the  remedy  should  have  been  sought  in  a  court  of  law. 
But  the  cases  which  have  been  cited,  show  that,  at  least,  this 
court  has  concurrent  jurisdiction  in  all  cases  of  fraud  and 
damage,  And  in  the  case  of  Durell  vs.  Haley,  1  Paige,  492, 
the  Court  of  Chancery  did  order  the  restoration  of  goods  to 
the  complainant  upon  the  ground  of  fraud. 

In  the  case  now  under  consideration,  the  remedy  at  law  upon 
a  recision  of  the  contract,  and  an  action  to  recover  back  the 
purchase  money,  would  not  be  free  from  difficulty  and  embar- 
rassment. The  appropriate  action,  when  the  contract  is  re- 
scinded by  the  purchaser,  by  returning  or  offering  to  return  the 
article  purchased  in  a  reasonable  time,  is  for  money  had  and 
received,  but,  as  in  the  present  case,  the  negroes  were  not  paid 
for  in  money,  and  as  it  does  not  now  appear  whether  the 
money  has  been  received  on  the  securities  assigned,  it  may,  at 
least,  be  doubted  whether  a  count  for  money  had  and  received, 
could  be  maintained. 

But  I  am  of  opinion  that  this  court  has  jurisdiction  ;  and, 
upon  the  grounds  already  stated,  shall  pass  a  decree  cancelling 
the  contract  of  sale,  directing  a  restoration  of  the  slaves  to  the 
vendors,  and  a  return  to  the  complainant  of  the  consideration 
paid  for  them,  and  for  costs  against  the  defendants. 

Something  was  said  about  a  provision  in  the  decree  for  an 
account  of  the  hires  and  profits  of  the  negroes,  and  other  mat- 
ters connected  with,  and  affecting  the  equities  of  the  parties. 
But  the  pleadings  do  not  make  a  case  which  will  authorize 
such  a  decree. 

All  that  I  can  do  upon  this  bill,  is  to  rescind  the  contract  in 
j  and  put  the  parties,  as  far  as  practicable,  in  statu  quo. 


[An  appeal  has  been  taken  from  this  decree,  and  is  still  de- 
pending.] 


ATKINSON  VS.  PHILLIPS.  5Q7 


JOSHUA  J.  ATKINSON,  T 

PERMANENT  TRUSTEE  OF 

WILLIAM  C.   SPINDLER 

f      DECEMBER  TERM.  1849. 
vs. 

JAMES  PHILLIPS,  SEN'R.  ET  AL. 

[CONVEYANCE  VOID  AS  TO  CREDITORS — RIGHT  OF  PERMANENT  TRUSTEE  TO  FILE  A 
BILL  TO  VACATE  SUCH.] 

A  VOLUNTARY  conveyance  made  by  a  person  not  indebted  at  the  time,  in  favor 
of  his  wife  and  children,  cannot  be  impeached  by  subsequent  creditors,  upon 
the  mere  ground  of  its  being  voluntary. 

The  mere  fact,  that  the  grantor  was  indebted  at  the  time,  does  not,  perse,  con- 
stitute a  substantive  ground  to  avoid  a  voluntary  conveyance  for  fraud,  even 
in  regard  to  prior  creditors.  The  question  of  fraud  is  to  be  ascertained 
from  all  the  circumstances  of  the  case,  and  not  alone  from  the  mere  fact  of 
indebtment  at  the  time. 

If  the  grantor  be  not  indebted  to  such  a  degree,  as  that  the  settlement  will  de- 
prive the  creditors  of  an  ample  fund  for  the  payment  of  their  debts,  the  con- 
sideration of  natural  love  and  affection  will  support  the  deed,  although  a 
voluntary  one,  against  creditors,  because  it  is  free  from  the  imputation  of 
fraud. 

But  the  existence  of  such  means  to  pay  creditors,  must  be  shown  by  the  parties 
claiming  under  the  deed,  and  the  burden  of  proof  is  clearly  upon  them,  to 
repel  the  fraud,  presumable  from  the  condition  of  the  grantor,  at  the  time 
the  conveyance  was  made. 

A  voluntary  conveyance  in  favor  of  the  wife  of  the  grantor,  was  set  aside  in 
this  case  in  favor  of  creditors,  upon  proof  that  he  was  largely  indebted  at 
the  period  of  its  execution,  and  no  attempt  being  made  to  prove  that  he  had 
means  for  the  payment  of  his  debts. 

A  conveyance,  purporting  to  be   made  for   a  monied   consideration  of  §3500, 

was   also  set  aside,  upon   clear  proof,   that  the   grantor  at   the  time,  was 

irretrievably  insolvent,   and  knew  himself  to  be  so,  and  that  it  was  made 

with  the  meditated  design  to  injure  and  defraud  his  creditors. 

A  deed,  fraudulent  and  void  as  to  creditors,  is,  nevertheless,  good  inter  paries. 

The  permanent  trustee  of  an  insolvent  debtor,  has  the  right  to  file  a  bill  to  set 

aside  conveyances  made  by  his  insolvent,  as  fraudulent  at  common  law,  or 

under  the  statute  of  Elizabeth,   against  creditors.     Unless  the  trustee  had 

this  power,  the  creditors  prejudiced  by   the  conveyance,   might  be  without 

remedy. 

[The  object  of  the  bill  in  this  case,  which  was  filed  on  the 
5th  of  March,  1846,  was  to  vacate  two  conveyances  made  by 
William  C.  Spindler  to  James  Phillips,  senr.,  upon  the  ground 
that  they  were  executed  to  delay,  hinder  and  defraud  the  credi- 


508  HIGH  COURT  OF  CHANCERY. 

tors  of  the  said  Spindler.  The  first  of  these  deeds  is  dated  on 
the  27th  of  March,  1834,  by  which,  for  the  nominal  considera- 
tion of  ten  dollars,  Spindler  conveyed  to  Phillips,  his  father-in- 
law,  a  large  and  valuable  real  estate,  situate  in  the  city  and 
county  of  Baltimore,  to  be  held  in  trust  for  the  separate  use  of 
the  wife  of  said  Spindler,  (the  daughter  of  Phillips,)  during 
her  life,  and  upon  certain  other  trusts  expressed  in  said  deed. 

The  other  conveyance  bears  date  on  the  18th  of  April  of  the 
same  year ;  whereby,  as  alleged  by  the  bill,  for  the  pretended 
consideration  of  thirty-five  hundred  dollars,  Spindler  absolutely 
and  unconditionally  conveyed  to  the  aforesaid  Phillips  all  his 
household  and  kitchen  furniture.  Jt  is  alleged  by  the  bill,  that 
the  consideration  expressed  in  this  instrument  was  not  in  fact 
paid,  and  that  both  conveyances  were  executed  for  the  purpose 
of  defrauding  the  creditors  of  the  grantor,  who  was  at  the  time 
largely  indebted  to  various  individuals  and  corporations. 

The  bill  further  alleges,  that  on  the  13th  of  January,  1835, 
Spindler,  being  indebted  as  aforesaid,  and  being  the  owner  by 
assignment  of  a  judgment  recovered  in  Baltimore  County  Court 
against  Jonathan  Manro,  with  a  like  fraudulent  intent,  assigned 
such  judgment  to  the  use  of  Hugh  Birckhead,  who  had  large 
dealings  with  Phillips,  and  that  the  money,  when  received  on 
said  judgment  by  Birckhead,  was  by  him  passed  to  the  credit 
of  said  Phillips ;  and  then  prays  that  this  money  also  may  be 
accounted  for  by  Phillips. 

The  answer  of  Spindler  and  wife  to  this  bill,  denies  the  fraud 
charged,  and  insists  upon  the  fair  intent  and  purpose  of  this 
deed,  and  that  the  consideration  expressed  in  each  of  them  was 
true  and  bona  fide.  It  does  not  deny  the  fact  of  Spindler's  large 
indebtedness  at  the  time  the  conveyances  were  executed,  but 
avers  that  he  was  then  engaged  in  a  large  and  prosperous  busi- 
ness, was  possessed  of  property  of  more  than  four  times  the 
amount  of  his  debts,  and  that  the  deed  was  executed  with  the 
view  of  securing  a  provision  for  his  family,  in  the  event  of  ad- 
versity in  business,  and  at  a  time  when  such  a  provision  was 
not  only  justifiable,  but  laudable  and  prudent.  This  answer 
also  denies,  altogether,  the  assignment  of  the  judgment  to  Birck- 


ATKINSON  VS.  PHILLIPS.  509 

head,  as  charged  in  the  bill.  The  answer  of  Phillips  very  near- 
ly corresponds  with  this,  and  need  not  be  more  particularly  ad- 
verted to. 

On  the  17th  of  December,  1834,  Phillips,  through  his  agent, 
he  being  absent,  purchased  the  county  property  of  said  Spind- 
ler,  sold  by  the  sheriff  under  executions  upon  judgments  recov- 
ered against  Spindler,  in  the  year  1834,  by  the  General  Insur- 
ance Company,  for  the  sum  of  two  hundred  and  fifty  dollars, 
although  the  same  was  appraised  at  nine  thousand  two  hundred 
dollars  ;  and  he,  also,  under  the  same  circumstances,  on  the 
22d  of  January,  1835,  purchased  the  town  property  aforesaid, 
appraised  at  four  thousand  dollars,  for  the  sum  of  three  thousand 
eight  hundred  dollars,  and  obtained  deeds  therefor  from  the 
sheriff. 

[The  Chancellor,  after  stating  the  case,  says  :] 

THE  CHANCELLOR : 

These  deeds,  it  will  be  observed,  are  not  impeached  upon 
the  ground  of  their  being  fraudulent  under  the  provisions  of  the 
insolvent  system,  as  having  been  executed  by  Spindler  with  a 
view  of  being  and  becoming  an  insolvent  debtor.  They  are 
charged  as  having  been  made  to  delay,  hinder  and  defraud  cred- 
itors, and  as,  therefore,  being  fraudulent  and  void,  both  at  com- 
mon law  and  under  the  provisions  of  the  statute  of  13th  Eliza- 
beth, chap.  5 ;  and,  whether  they  are  so  or  not,  is  the  only 
question  that  has  been  discussed  by  the  counsel  in  their  oral 
and  written  arguments. 

The  principle  extracted  by  Mr.  Chancellor  Kent  from  a  re- 
view of  the  cases  is,  "that  if  the  party  is  indebted  at  the  time 
of  the  voluntary  settlement,  it  is  presumed  to  be  fraudulent  in 
respect  to  such  debts ;  and  no  circumstance  will  permit  those 
debts  to  be  affected  by  the  settlement,  or  repel  the  legal  pre- 
sumption of  fraud" — that  "the  presumption  of  law  in  this  case 
does  not  depend  upon  the  amount  of  the  debts,  or  the  extent 
of  the  property  in  settlement,  or  the  circumstances  of  the  par- 
ty"— "that  there  is  no  such  line  of  distinction  set  up  or  traced 
in  any  of  the  cases  ;  and  that,  therefore,  the  law  has  wisely  dis- 
43* 


510  HIGH  COURT  OF  CHANCERY. 

abled  the  debtor  from  making  any  voluntary  settlement  of  his 
estate  to  stand  in  the  way  of  his  existing  debts." 

This  principle  so  affirmed  by  Chancellor  Kent  in  Reade  vs. 
Livingston,  3  Johns.  Ch.  Rep.,  500,  501,  as  the  clear  and  uni- 
form doctrine  taught  by  the  cases,  is  considered  by  Mr.  Justice 
Story  as  strictissimi  juris,  and  pushing  the  rule  to  an  unreason- 
able extent,  unless  indeed  the  conveyance  is  intentionally  made 
to  defraud  creditors,  when  it  would  be  void  on  account  of  ill 
faith.  But  if  the  conveyance  is  founded  upon  a  good  consider- 
ation, and  is,  moreover,  bona  fide  ;  then,  though  the  grantor 
may  be  indebted  at  the  time,  yet  if  the  circumstances  attending 
the  transaction  are  such  as  to  repel  the  presumption  of  fraud,  it 
.seems,  from  the  reasoning  and  cases  cited  by  the  writer,  that 
the  mere  circumstance  of  the  party  not  being  entirely  exempt 
from  debt  at  the  time  would  not  be  sufficient  to  overthrow  the 
conveyance. 

The  doctrine  established  by  the  Supreme  Court  of  the  United 
States,  is,  that  a  voluntary  conveyance  made  by  a  person  not 
indebted  at  the  time,  in  favor  of  his  wife  and  children,  cannot 
be  impeached  by  subsequent  creditors  upon  the  mere  ground  of 
its  being  voluntary.  It  must  be  shown  to  have  been  fraudu- 
lent, or  made  with  a  view  to  future  debts  ;  and  the  mere  fact 
of  being  indebted  at  the  time  does  not,  per  se,  constitute  a  sub- 
stantive ground  to  avoid  a  voluntary  conveyance  for  fraud,  even 
in  regard  to  prior  creditors.  The  question  whether  fraudulent 
or  not,  is  to  be  ascertained  from  all  the  circumstances  of  the 
case,  and  not  alone  from  the  mere  fact  of  indebtment  at  the 
time.  "If,"  say  the  Supreme  Court  in  Hinders  Lessee  vs. 
Longworth,  11  Wheat.,  1991,  "it  could  fbe  shown  that  the 
grantor  was  in  prosperous  circumstances,  and  unembarrassed, 
and  that  the  gift  to  the  child  was  a  reasonable  provision,  accord- 
ing to  his  state  and  condition  in  life,  and  leaving  enough  for 
the  payment  of  the  debts  of  the  grantor,  the  mere  fact  of  his 
being  indebted  would  not  make  the  deed  fraudulent."  The 
want  of  a  valuable  consideration  may  be  a  badge  of  fraud,  but 
it  is  only  presumptive,  and  not  conclusive,  evidence  of  it,  and 
may  be  rebutted  by  evidence  on  the  other  side."  And  this 


ATKINSON  VS.  PHILLIPS.  511 

doctrine,  as  Mr.  Justice  Story  says,  was  asserted  in  a  case 
where  the  conveyance  was  sought  to  be  set  aside  by  persons 
claiming  under  judgment  creditors  upon  antecedent  debts.  1 
Story's  Eq.,  sec.  362. 

If  the  high  authority  of  the  Supreme  Court  required  any  sup- 
port, it  would  be  found  in  the  cases  cited  by  the  writer,  (in 
note  21  to  this  section,)  and  particularly  in  the  case  of  Ver- 
planck  vs.  Story,  12  Johns.  Rep.,  536,  in  which  Mr.  Justice 
Spencer,  in  delivering  the  opinion  of  the  court,  said,  "if  the 
person  making  a  settlement  is  insolvent  or  in  doubtful  circum- 
stances, the  settlement  comes  within  the  statute  of  13th  Eliza- 
beth, ch.  5.  But  if  the  grantor  be  not  indebted  to  such  a  de- 
gree as  that  the  settlement  will  depfive  the  creditors  of  an 
ample  fund  for  the  payment  of  their  debts,  the  consideration 
of  natural  love  and  affection  will  support  the  deed,  although  a 
voluntary  one,  against  creditors,  for,  in  the  language  of  the 
decisions,  'it  is  free  from  the  imputation  of  fraud.' ' 

These  decisions,  thus  modifying  and  mitigating  the  rule  upon 
this  subject,  as  laid  down  by  Chancellor  Kent,  in  the  case  re- 
ferred to,  are  quite  in  accordance  with  the  doctrine  held  by  the 
Court  of  Appeals  of  this  state,  in  Jones  vs.  Sluby,  5  H.  fy  «/., 
372,  and  appear  to  me  to  be  so  perfectly  reasonable  and  judici- 
ous, that  I  should  be  disposed  to  adopt  and  follow  them,  even 
if  opposed  by  authorities  equally  imposing. 

That  the  grantor,  Spindler,  was  largely  indebted  at  the  period 
of  the  execution  of  the  deed  of  the  27th  March,  1834,  is  not 
denied  by  his  answer,  and  is,  moreover,  abundantly  established 
by  the  evidence.  If  not  actually,  at  that  time,  insolvent,  he 
was  unquestionably  in  precarious  circumstances,  and  although 
he  alleges  that  he  retained  ample  means  to  pay  his  debts,  no 
attempt  has  been  made  to  prove  the  existence  of  such  means, 
and  the  burden  of  proof  to  repel  the  fraud  presumable  from  the 
condition  of  the  grantor  at  the  time,  is  clearly  upon  the  parties 
claiming  under  the  deed.  Birely  vs.  Staley,  5  G.  fy  /.,  432. 

My  opinion,  therefore,  is,  that  this  deed  of  the  27th  of  March, 
1834,  is  void  as  to  creditors  under  the  statute  of  Elizabeth,  being 
purely  voluntary,  having  been  made  by  a  party  shown  to  have 


512  HIGH  COURT  OF  CHANCERY. 

been  largely  indebted  at  the  time,  and  the  parties  claiming  under 
it  having  failed  to  show  other  property  owned  by  the  grantor, 
sufficient  to  pay  his  debts ;  and,  being  moreover  convinced, 
from  the  evidence  and  circumstances  of  the  case,  that  the 
grantor  had  not,  independent  of  the  property  so  conveyed,  suf- 
ficient to  pay  the  demands  of  his  creditors.  I  do  not,  however, 
mean  to  be  understood  as. deciding,  that  creditors,  impeaching 
a  voluntary  conveyance  made  by  their  debtor,  are  bound  to 
show,  affirmatively,  that  the  debtor  has  by  the  conveyance  strip- 
ped himself  of  the  means  of  paying  his  debts  ;  because,  I  think, 
the  parties  claiming  under  the  deed,  are  required  to  show  that 
the  grantor  did  not  so  disable  himself,  and  that  a  sufficient  fund 
remained  to  satisfy  the  claims  of  his  creditors  ;  and  that,  there- 
fore, the  facts  of  this  case  are  even  stronger  than  would  be  re- 
quired to  bring  it  within  the  less  stringent  principle  laid  down 
by  the  Supreme  Court,  and  established  by  the  other  cases  re- 
ferred to. 

The  next  inquiry  has  reference  to  the  bill  of  sale  of  the  18th 
of  April,  1834,  and  which  purports  to  be  made  for  a  raonied 
consideration  of  $3500. 

The  original  answer  of  the  grantee,  Phillips,  to  the  averments 
and  interrogatories  of  the  bill  in  reference  to  the  execution  of 
this  bill  of  sale,  and  the  time  and  manner  of  paying  the  consid- 
eration expressed  in  it,  and  also  in  other  respects,  being 
evasive  and  unsatisfactory,  the  complainant  excepted  thereto, 
and  after  argument,  the  exceptions  were  sustained,  and  the  de- 
fendant, by  an  order  passed  on  the  29th  of  October,  1846,  was 
required  to  put  in  a  full  and  sufficient  answer,  by  a  day  limited 
for  that  purpose. 

And  it  appears  by  the  answer  filed  in  obedience  to  this  order, 
that  he  was  absent  from  the  United  States,  on  a  voyage  to 
Brazil  and  Buenos  Ayres,  from  a  day  prior  to  the  27th  of 
March,  1834,  to  the  15th  of  January,  1835,  so  that  he  was 
not  and  could  not  have  been  present,  when  either  the  deed  of 
trust  or  bill  of  sale  was  executed.  The  answer,  in  responding 
to  the  inquiry  respecting  the  time  and  manner  of  paying  the 
consideration  expressed  in  the  bill  of  sale,  says,  "it  was  duly 


ATKINSON  VS.  PHILLIPS.  513 

and  fully  paid  by  the  respondent  to  said  Spindler,  by  advances 
from  time  to  time  made,  and  by  a  claim  for  board  from  said 
Spindler  and  his  family,  furnished  by  this  respondent" — "that 
said  advances  and  board  were  supplied  to  said  Spindler  by  this 
respondent,  personally,  prior  to  the  execution  of  said  bill  of 
sale,"  &c. 

This  bill  of  sales  then,  which  conveyed  to  the  grantee  all  the 
household  and  kitchen  furniture  of  Spindler  of  every  kind  and 
description,  without  reservation  or  exception,  was  executed  in 
the  absence  of  Phillips,  the  grantee,  without  the  slightest  solici- 
tation on  his  part,  and,  as  confessed  in  the  answer  of  Phillips, 
to  secure  in  part  a  claim  due  him,  from  Spindler,  for  the  board 
of  himself  and  family.  It  professes  upon  its  face  to  have  been 
executed  for  a  monied  consideration  of  three  thousand  five 
hundred  dollars ;  and  there  is,  moreover,  a  receipt  at  the  foot 
of  the  instrument  for  that  sum.  That  the  sum  of  $3500  was 
not  paid  in  cash,  stands  confessed  by  the  answer,  and  we  have 
no  means  of  knowing  what  proportion  was  so  paid ;  the 
answer  being  silent  upon  the  subject.  Now,  it  is  certainly 
worthy  of  remark,  and  calculated  to  arouse  suspicion,  that  a 
man  who  swears  that  he  was  at  that  very  time  engaged  in  a 
large  and  prosperous  business,  and  worth,  and  possessed  of 
property,  independent  of  that  contained  in  these  instruments, 
exceeding  in  value  more  than  four  times  the  amount  of  his 
debts,  should,  without  solicitation,  and  in  payment  of  a  claim 
against  him,  partly  for  the  board  of  himself  and  family,  convey 
atvay,  absolutely  and  unconditionally,  all  his  household  and 
kitchen  furniture  ;  and  this  ground  of  suspicion  is  certainly  not 
weakened  by  the  fact  that  the  grantee  in  this  conveyance  is  his 
father-in-law,  who,  so  far  from  insisting  upon  such  conveyance 
for  his  security,  was  absent  from  the  country  at  the  time. 

That  Spindler  was  hopelessly  insolvent  at  the  date  of  this 
conveyance,  and  when  the  deed  of  the  preceding  month  of 
March  was  executed,  I  am  thoroughly  convinced  from  the  evi- 
dence. It  would  be  a  consumption  of  time  to  go  into  a  minute 
analysis  of  the  proof  upon  this  point,  and  I  deem  it  sufficient 
to  say,  that  upon  a  very  careful  examination  of  it,  I  do  not  see 


514  HIGH  COURT  OF  CHANCERY. 

any  grounds  upon  which  a  reasonable  doubt  can  be  entertained. 
I  am  not  only  entirely  satisfied  that  he  was  irretrievably  insolv- 
ent, but  that  he  knew  himself  to  be  so,  and  that  these  convey- 
ances were  made  for  the  purpose  of  placing  his  property 
beyond  the  reach  of  his  creditors  ;  and  that  it  is  the  duty  of  this 
court  to  frustrate  the  design,  unless  there  stands  in  the  way 
some  insuperable  principle  of  law. 

The  property  contained  in  the  deed  of  trust  of  the  27th  of 
March,  1834,  and  the  bill  of  sale  of  the  18th  of  April,  of  the 
same  year,  seems  to  have  been  every  thing  of  a  visible  and 
tangible  nature  which  Spindler  possessed,  and  when,  in  addi- 
tion to  these  transfers,  he,  in  January,  1835,  assigned,  for  Phil- 
lips' benefit,  the  judgment  against  Manro,  he  stripped  himself  of 
almost  every  thing  he  possessed  in  the  world  which  could  be 
made  available  to  his  creditors.  And  what  makes  the  assign- 
ment  of  the  judgment  still  more  reprehensible,  it  appears  not  only 
to  have  been  made  without  consideration,  but  the  fact  that  any 
such  assignment  was  made,  is  denied  by  the  answer  of  Spindler. 
The  record,  however,  and  the  proof  of  Mr.  Birckhead  fully 
disprove  the  answer  in  this  respect,  and  establishes  not  only 
the  fact  of  the  assignment,  but  that  the  money  received  upon 
the  judgment  inured  for  the  benefit  of  Phillips. 

And  taking  all  these  transactions  and  grouping  them  to- 
gether— the  proximity  of  the  conveyances  to  each  other  in  point 
of  time — the  total  absence,  or  even  pretence,  of  any  valuable 
consideration  for  the  deed  of  March,  1834,  by  which  a  large 
amount  of  property  was  settled  upon  the  wife  and  child  of 
Spindler,  the  suspicious  circumstances  which  surround  the  bill 
of  sale  of  April,  1834,  and  the  denied  but  proved  transfer  of 
the  judgment  of  1835,  and  I  think  I  may  say,  in  the  language 
of  Judge  Story,  in  Bean  vs.  Smith  et  a/.,  2  Mason's  Reports, 
294,  that  "the  badges  of  fraud  cluster  about  them  in  every 
direction,"  and  that  these  conveyances  and  transfers  were  made 
with  the  meditated  design  to  injure  and  defraud  creditors. 

It  appears  to  me  impossible  to  read  this  record,  and  not 
come  to  the  conclusion  that  Spindler  saw  and  was  fully  sensi- 
ble of  the  desperate  condition  of  his  affairs,  and  that  it  was  his 


ATKINSON  VS.   PHILLIPS.  515 

purpose  to  benefit  his  family  at  the  expense  of  his  creditors. 
The  deeds,  then,  in  my  judgment,  were  made  to  delay,  hinder 
and  defraud  them,  and  must  be  vacated  and  the  property  sold 
for  their  benefit,  unless  the  remaining  ground  of  defence  is  a 
good  one,  and  that  rests  upon  the  effect  of  the  sale  by  the 
sheriff  to  Phillips,  under  executions  upon  judgments  against/ 
Spindler  , recovered  by  the  General  Insurance  Company,  in  the 
year  1834. 

It  is  supposed,  by  the  counsel  for  the  defendants,  that  this 
purchase  by  Phillips,  at  the  sale  made  by  the  sheriff,  gives  him 
every  thing  necessary  to  perfect  his  title,  whatever  may  have 
been  the  infirmities  of  the  original  deed,  unless  it  can  be  shown 
that  the  sale  was  collusive  and  fraudulent,  which  is  denied  in 
the  answer,  and  contested  in  the  argument. 

I  do  not  deem  it  necessary  to  investigate  the  question  of 
fraud,  as  charged  on  the  one  side,  and  disputed  on  the  other, 
because  I  think  it  very  clear,  that  even  assuming  the  fairness 
of  this  part  of  the  transaction  on  the  part  of  Phillips  and  Spind- 
ler, the  fate  of  the  case  must  depend  upon  the  original  integrity 
of  the  deed  of  March,  1834,  and  that  the  title  of  Phillips  to 
hold  the  property  conveyed  thereby,  against  the  creditors  of 
Spindler,  can  draw  to  it  no  aid  from  the  sheriff's  sale. 

The  deed  of  March,  1834,  though  in  my  opinion,  fraudulent 
and  void  as  to  creditors,  was  clearly  good  inter  partes,  and  of 
course,  Spindler  was  thereby  divested  of  any  interest  in  the 
property  conveyed,  other  than  the  merely  contingent  life  estate 
reserved  to  him  by  the  instrument  itself,  and  when  Phillips  pur- 
chased at  the  sale  made  by  the  sheriff,  upon  an  execution  is- 
sued upon  a  judgment  against  Spindler,  he  acquired  and  could 
acquire  nothing  more  than  that  contingent  right,  and  the  con- 
tingency not  having  happened,  upon  which  the  title  of  Spind- 
ler to  the  beneficial  interest  in  the  property  for  life,  was  to  arise, 
it  would  seem  to  follow  necessarily,  that  this  purchase  is 
wholly  ineffectual  to  clothe  the  purchaser  with  any  rights  which 
can  be  asserted  against  the  creditors. 

These  views  dispose  of  the  grounds  of  defence  taken  in 
the  answers,  and  urged  in  the  argument,  and,  in  my  judgment 
show  them  to  be  untenable. 


516  HIGH  COURT  OP    CHANCERY. 

A  difficulty,  however,  occurred  to  me  at  one  time,  respecting 
the  right  of  the  complainant,  who  is  the  permanent  trustee  in 
insolvency  of  Spindler,  the  grantor,  to  file  a  bill  to  vacate  con- 
veyances made  by  him  as  fraudulent,  under  the  provisions  of 
the  statue  of  Elizabeth — I  thought  it  might  perhaps  be  doubted, 
whether,  as  the  conveyances  were  good  against  the  grantor 
himself,  his  insolvent  trustee  could  be  permitted  to  impeach  them. 
Subsequent  reflection,  however,  and  an  examination  of  one  or 
two  of  the  cases,  has  satisfied  me  that  the  doubt  is  not  well 
founded  ;  and  that  unless  the  trustee  may  maintain  such  a  suit, 
the  creditors  of  the  insolvent,  who  are  prejudiced  by  the  con- 
veyance, might  be  without  remedy  altogether.  According  to 
the  principles  settled  by  the  Court  of  Appeals  in  Alexander  vs. 
Ghiselin  et  a/.,  5  Gill,  138,  the  whole  estate  pf  the  insolvent, 
whatever  may  be  its  condition,  passes  into  the  hands  of  the 
trustee,  to  be  by  him  managed  for  the  benefit  of  his  creditors, 
who  are  deprived  by  operation  of  the  insolvent  system,  of  the 
right  to  pursue  in  their  own  names,  any  remedy  against  the 
property  of  the  debtor,  however  it  may  be  situated  at  the  time 
of  his  application  for  relief. 

It  is  true,  that  if  there  be  a  surplus  after  the  payment  of  the 
claims  of  creditors,  it  will  be  enjoyed  by  the  insolvent,  and  so 
far,  and  to  that  extent,  the  annulling  the  conveyances  operates 
to  his  benefit,  but  still  as  the  property  or  its  proceeds  must  be 
in  the  first  place  applied  to  the  payment  of  the  creditors,  the 
power  of  the  court  must  be  regarded  as  exerted  chiefly  for  them  ; 
and  if  the  conveyance  is  void  as  against  creditors,  under  the  stat- 
ute of  Elizabeth,  it  would  seem  proper  to  permit  the  trustee  to 
institute  proceedings  for  the  purpose  of  vacating  it,  as  other- 
wise the  creditors,  though  wronged,  would  be  without  remedy. 
In  Virginia,  the  sheriff,  when  a  debtor  takes  the  insolvent 
oath,  and  delivers  in  a  schedule,  is  vested  by  the  act  of  assem- 
bly with  all  the  insolvent's  estate,  rights  and  interests ;  and  as 
the  Court  of  Appeals  of  that  state  said,  in  the  case  of  Shirley 
vs.  Long,  6  Randolph,  748,  "he  represents  both  the  insolvent 
and  the  creditors,"  "and  it  would  be  strange,  that  if  the  insolv- 
ent were  to  convey  away  half  his  property,  and  this  most 


BALTZELL  VS.  TRUMP.  517 

manifestly  fraudulent,  this  curator  and  trustee  could  do  nothing, 
bring  no  suits,  take  no  steps  to  recover  this,  and  bring  it  into 
a  division  among  the  creditors. 

The  right  of  the  trustee  to  file  such  a  bill  as  the  present,  is 
maintained  by  the  case  of  Riggs  vs.  Murray,  2  Johns.  Ch. 
Rep.,  565,  and  is  believed  to  have  been  decided  by  the  Court 
of  Appeals  of  this  State,  in  the  case  of  Gatchell,  permanent 
trustee  vs.  Uhler  and  Bruner,  not  reported,  and  in  Wlnn  and 
Ross  vs.  Albert  and  Wife. 

I  am  of  opinion,  therefore,  that  the  present  bill  may  be  main- 
tained ;  and  considering,  for  the  reasons  which  have  been  sta- 
ted, that  the  deed  and  bill  of  sale  are  void,  as  against  credi- 
tors, a  decree  will  be  passed  to  that  effect,  when  the  property 
will  be  vested  in  the  complainant  as  permanent  trustee  of  Spind- 
ler,  to  be  by  him  administered  in  insolvency. 

The  complainant  having  waived  the  residue  of  his  prayer  for 
relief,  no  opinion  is  expressed  in  relation  thereto. 

[An  appeal  was  taken  from  this  decree,  which  is  still  de- 
pending.] 


PHILIP  BALTZELL, 

SURVIVING  PARTNER  OF 

THOMAS  BALTZELL 


vs. 


ANN  TRUMP,  EXECUTRIX  OF 
WILLIAM  B.   TRUMP. 


MARCH  TERM,  1850. 


[CONSTRUCTION  OF  PARTNERSHIP  AGREEMENT.] 

BY  one  of  the  articles  of  a  partnership  agreement,  a  partner  bound  himself, 
"not  to  take  out  of  the  business,  or  stock  in  trade,"  of  the  partnership, 
"more  than  seven  hundred  dollars  per  annum,  in  goods  or  money,  or  both." 
HELD — 

That  this  article  could  not  be  construed  as  an  agreement,  that  this  partner 
should  have  a  salary  of  seven  hundred  dollars,  in  consideration  of  his  giving 
his  attention  to  the  business  of  the  firm. 

That  by  this  article  he  was  restricted  from  taking  more  than  seven  hundred 
dollars,  but  he  might  take  less,  and  if  he  should  take  less,  he  would  not  be 
entitled  to  have  the  difference  made  up,  upon  the  expiration  of  the  partner- 
ship. 

VOL  1      11 


518  HIGH  COURT  OF  CHANCERY. 

[By  articles  of  agreement,  executed  on  the  seventh  day  of 
February,  eighteen  hundred  and  thirty-five,  Philip  and  Thomas 
Baltzell,  and  William  B.  Trump,  entered  into  copartnership, 
under  the  name  and  firm  of  William  B.  Trump  &  Co.,  to  com- 
mence on  the  ninth  of  the  same  month  and  continue  for  the 
term  of  three  years. 

The  third  article  provided,  that  all  expenses  relating  to  the 
business  of  the  firm  should  be  taken  out  of  the  joint  funds,  of 
which  a  regular  account  was  to  be  kept,  and  each  item 
charged,  as  it  accrued,  in  the  expense  account. 

The  fourth  article  provided,  that,  after  paying  expenses,  and 
deducting  the  capital  of  $14,000,  one  half  of  which  was  to  be 
contributed  by  Trump,  and  the1  other  by  the  Baltzells,  the  resi- 
due, if  any,  was  to  be  equally  divided,  that  is,  Trump  was  to 
recieve  one  half  and  the  Baltzells  the  other. 

The  fifth  article  is  in  the  following  words  :  "  The  said  Wil- 
liam B.  Trump  binds  himself  not  to  take  out  of  the  business  or 
stock  in  trade  of  the  said  firm  of  William  B.  Trump  &  Co., 
more  than  seven  hundred  dollars  per  annum,  in  goods,  or 
money,  or  both." 

The  amounts  withdrawn  at  different  times,  and  making  the 
aggregate  sum  of  $2100,  were  never  entered  on  the  expense 
account  until  the  1st  February,  1838.  On  that  day,  shortly 
before  the  dissolution  of  the  copartnership,  of  which  dissolution 
the  articles  relevant  to  this  case  are  recited  by  the  Chancellor, 
in  his  opinion,  an  entry  was  made  by  the  direction  of  Trump, 
by  which  he  was  credited,  and  the  expense  account  charged 
with  this  whole  sum.  The  bill  in  this  case,  which  was  to  re- 
cover the  said  sum  of  $2100,  was  filed  by  Philip  and  Thomas 
Baltzell  on  the  equity  side  of  Baltimore  County  Court,  on  the 
24th  of  June,  1841.  Upon  the  death  of  the  complainant, 
Thomas  Baltzell,  and  of  the  defendant,  William  B.  Trump,  a 
bill  of  revivor  was  filed  by  the  surviving  partner  against  the 
executrix  of  the  deceased  defendant,  and  the  case  was  subse- 
quently removed  to  the  Court  of  Chancery. 

[The  Chancellor,  in  his  opinion,  says  :] 


BALTZELL  VS.  TRUMP.  519 

THE  CHANCELLOR: 

Although  the  answer  in  this  case,  which  was  filed  by  Wil- 
liam B.  Trump,  in  his  lifetime,  resists  the  complainant's  title 
to  the  relief  prayed  by  the  bill,  upon  the  ground  that  he, 
Trump,  was  to  be  allowed  the  sum  of  seven  hundred  dollars 
per  annum  for  his  services,  out  of  the  joint  effects  of  the  firm, 
as  a  part  of  the  expense  of  conducting  its  business,  I  do  not 
understand  it  to  be  strongly  insisted  that  the  articles  of  copart- 
nership bear  that  interpretation ;  and  it  appears  to  me  to  be 
totally  unwarranted  by  any  one  of  the  stipulations  of  that 
agreement,  or  of  the  whole  taken  together. 

As  there  was  to  be  no  division  of  the  profits  during  the  con- 
tinuance of  the  partnership,  and  as  it  may  be  fairly  presumed 
from  the  proceedings  that  Trump  would  have  been  without 
means  to  defray  his  own  personal  expenses,  unless  some  stipu- 
lation had  been  introduced  to  authorize  him  to  take  something 
out  of  the  firm,  the  fifth  article  was  inserted. 

The  theory  of  the  answer  is,  that  this  article  entitled  Trump 
to  take  from  the  firm  the  sum  of  seven  hundred  dollars  per  an- 
num, as  a  part  of  the  expense  of  carrying  on  its  operations — 
that  it  was  the  agreement  of  the  parties,  that  in  addition  to  his 
share  of  the  profits,  he  should  have  a  salary  of  seven  hundred 
dollars,  in  consideration  of  his  giving  his  undivided  personal 
attention  to  the  business  of  the  firm. 

If  such  was  really  the  contract  of  the  parties,  it  cer- 
tainly seems  strange  that  their  meaning  was  not  expressed  in 
clearer  terms ;  and  still  more  extraordinary,  that,  if  a  fixed 
compensation  had  been  designed,  the  article  should  have 
declared  he  should  not  take  more  than  the  given  sum.  Can  it 
be  reasonably  contended,  that  if  Mr.  Trump,  during  the  three 
years,  had  withdrawn  less  than  seven  hundred  dollars  per  an- 
num, he  would  have  been  entitled,  upon  the  termination  of  the 
partnership,  to  have  taken  out  a  sum  equal  to  the  difference 
between  the  amount  so  withdrawn. by  him  and  the  annual  com- 
pensation which  he  now  claims  ?  The  language  of  the  con- 
tract is,  that  he  shall  not  take  more  than  seven  hundred  dollars, 
but  surely  he  might  take  less;  and  there  is  nothing  in  any  part 


520  HIGH  COURT  OF  CHANCERY. 

of  the  instrument  which  gives  color  to  the  idea,  that  if  he 
should  take  less,  the  difference  should  be  made  up  to  him  upon 
the  expiration  of  the  partnership. 

It  may  also  be  observed,  that  the  view  here  taken  of  this 
contract  entirely  conforms  with  what  seems  to  have  been  the 
construction  put  upon  it  by  Mr.  Trump,  until  the  entry  was 
made  in  the  books  on  the  1st  of  February,  1838,  but  eight  days 
before  the  agreement  dissolving  the  partnership  was  executed. 

The  agreement  was,  that  every  article  properly  chargeable  to 
the  expense  account,  should  be  charged  as  it  accrued,  and  it 
is  certainly  fair  to  suppose,  that  if  Mr.  Trump  had  considered 
that  the  sums  and  goods  taken  out  by  him  were  to  be  placed 
to  that  account,  he  would  have  caused  the  proper  entries  to 
be  made,  from  time  to  time,  as  was  done  with  respect  to  the 
other  expenses  attending  the  prosecution  of  the  business. 

I  do  not  deem  it  necessary  to  refer  particularly  to  the  parol 
evidence,  and  will  simply  observe,  that  I  am  satisfied  from  it, 
that  when  the  agreement  dissolving  the  partnership  was  made, 
the  Baltzell's  did  not  know  of  the  entry  of  the  1st  of  February, 
1838,  and,  therefore,  they  are  not  to  be  presumed  to  have  sanc- 
tioned it,  either  by  acquiescence,  or  by  positive  approbation. 

I  do  not  find  in  the  stipulations  of  the  agreement,  by  which 
this  partnership  was  dissolved,  anything  which,  by  reasonable 
construction,  can  absolve  the  estate  of  Trump  from  the  pay- 
ment of  the  sum  claimed  by  this  bill. 

In  consideration  of  the  sum  of  $15,550,  stipulated  to  be  paid 
by  the  Messrs.  Baltzell  to  Trump,  and  which  it  is  conceded 
has  been  paid,  and  that  they  should  assume  to  pay  all  claims 
against  the  firm,  and  there  is  no  pretence  that  they  have  not 
faithfully  performed  this  stipulation  ;  Trump  agreed,  on  his  part, 
and  did,  by  the  terms  of  said  agreement,  "assign,  transfer  and 
deliver  to  them,  all  his  right  to  and  interest  in  all  accounts, 
notes,  bonds,  mortgages,  and  judgments,  or  claims  in  any 
other  form  whatever,  belonging  to  or  due  the  firm  of  William 
B.  Trump  &  Co.,  be  the  same  more  or  less." 

There  are  other  provisions  transferring  to   the  Baltzells  the 
stock  of  goods  on  hand,  and  the  cash,  be  the  same  more  or  less. 


BALTZELL  VS.  TRUMP.  521 

And  then  there  is  a  provision,  that  the  Baltzells  take  the 
debts  due  the  firm  at  their  own  risk — that  Trump  should  give 
them  a  bond  with  security,  that  he  had  contracted  no  other 
debts  or  liabilities  against,  or  in  the  name  of  the  firm,  other 
than  those  enumerated  in  a  schedule  taken  from  the  books, 
and  also  against  any  other  liabilities  created  by  him  individu- 
ally ;  and  the  Baltzells  were,  in  like  manner,  to  give  bond  to 
Trump  for  the  performance  of  their  engagement  to  pay  the 
debts  of  the  firm,  and  then  follows  this  stipulation  : 

"The  above  conditions  being  fulfilled,  William  B.  Trump, 
Thomas  Baltzell  and  Philip  Baltzell,  mutually  renounce  all 
claims  against  each  other,  any  loss  or  gain,  or  any  accounts  or 
claim,  assigned  to  either  party,  to  be  the  loss  or  gain  of  said 
party,  as  the  case  may  be." 

Whatever  may  be  the  true  construction  of  the  articles  of  co- 
partnership, this  provision,  it  is  contended,  must  protect  the 
defendant  from  the  claim  now  made  upon  him  for  the  sum  of 
two  thousand  one  hundred  dollars,  for  which  he  was  indebted 
to  the  firm,  and  stood  indebted  upon  its  books,  until  the  entry 
of  the  1st  of  February,  1838,  was  made. 

We  must  assume,  of  course,  that  entry  was  an  improper  one, 
and  that  Mr.  Trump  actually  owed  the  firm  the  sum  of  money 
in  question,  precisely  as  any  other  person  would,  who  stood 
fairly  charged  upon  its  books  with  money  and  goods  to  that 
amount,  and  then  the  question  is,  whether,  in  the  stipulation 
quoted,  there  is  anything  which  will  release  him  from  such  a 
claim. 

I  cannot  bring  myself  to  think  so — the  parties  by  the  agree- 
ment dissolving  the  partnership,  had  entered  into  various  re- 
ciprocal stipulations.  Those  on  the  part  of  Trump  were,  that 
he  should  transfer  and  assign  to  the  Baltzells  all  claims  due  to,- 
and  merchandise  and  cash,  the  property  of  the  firm,  and  the 
latter  agreed,  on  their  part,  to  pay  all  claims  against  the  firm, 
to  incur  the  risk  of  the  insolvency  of  those  who  might  be 
debtors  to  it,  and  to  pay  to  Trump  a  specific  sum  of  money 
for  his  interest.  Stipulations  which  they  have  faithfully  per- 
formed. Trump's  engagement  was,  that  he  would  assign  and 
44* 


522  HIGH  COURT   OF   CHANCERY. 

transfer  to  the  Baltzells  all  claims  due  to  the  firm,  and  all  mer- 
chandise and  cash  on  hand  ;  and  upon  his  doing  so,  they  agreed 
to  renounce  any  claim  against  him  which  his  failure  to  perform 
his  contract  would  have  given  rise  to.  But  the  complaint  they 
now  make  is,  that  he  did  not  perform  his  contract — that  there 
existed  upon  the  books  of  the  firm  an  account  against  himself 
for  a  large  sum  of  money,  which,  by  the  express  terms  of  the 
contract  dissolving  the  partnership,  was  to  have  been  assigned 
to  the  Baltzells.  But  that  instead  of  doing  this,  he,  Trump, 
without  their  knowledge,  and  without  any  authority  to  be  found 
in  the  articles  of  copartnership,  extinguished  this  claim  by  an 
arbitrary  entry  in  the  books.  Assuming  this  to  be  the  case, 
(and  it  appears  to  me  to  be  impossible  to  contend  that  the  con- 
tract which  gave  rise  to  the  partnership  justified  the  entry,)  and 
then  it  follows  that  Trump  did  not  fulfill  his  engagement  to 
assign  over  to  the  Baltzells  all  claims  due  to  the  firm  ;  and, 
therefore,  there  is  no  pretence  for  saying  that  he  may  shelter 
himself  under  the  stipulation  by  which  the  parties  reciprocally 
renounced  demands  against  each  other,  since  that  renunciation 
was  only  to  take  effect  upon  the  performance  by  each  of  all  the 
terms  of  the  contract  on  his  part.  If  this  account  against  Mr. 
Trump  on  the  books  of  the  firm  was  a  claim  due  it,  it  passed 
to  the  Messrs.  Baltzells  by  the  express  terms  of  the  contract ; 
and  an  entry  in  the  books  made  by  the  former,  wholly  unau- 
thorized by  the  articles  of  copartnership,  cannot  extinguish  or 
impair  their  rights,  nor  can  they  be  impaired  by  the  contract  of 
dissolution,  of  which  that  very  entry  was  a  violation  on  the 
part  of  Trump. 

My  opinion,  therefore,  is,  that  the  complainant  is  entitled  to 
the  relief  sought  by  his  bill ;  and  as  the  sum  claimed  is  specific, 
and  an  agreement  has  been  filed  admitting  assets,  there  can  be 
no  necessity  for  sending  the  case  to  the  auditor  for  an  account. 

The  bill  claims  the  sum  of  $2100,  with  interest  from  the  date 
of  the  dissolution  of  the  partnership,  on  the  9th  of  February, 
1838,  but  I  think  I  shall  be  doing  justice  by  giving  interest 
from  the  day  the  bill  was  filed,  on  the  24th  of  June,  1841,  and 
shall  so  decree. 


BROOKS  VS.  DENT.  523 


CHAUNCY  BROOKS  ET  AL. 

vs. 

HENRY  H.  DENT, 

ADMINISTRATOR  D.   B.  N.   OF 

HENRY  BRAWNER  ET  AL. 


MARCH  TERM,   1850. 


[SECRET  TRUST — RESULTING  TRUST  AS  AGAINST  CREDITORS — STATUTE  OF  FRAUDS.] 

A  HUSBAND  and  wife,  for  a  bona  Jide  and  valuable  consideration,  may  contract 
for  a  transfer  of  property  from  him,  to  her. 

A  settlement  upon  the  wife  after  marriage,  in  pursuance  of  a  valid  agreement 
before  marriage,  is  good  and  binding  against  the  creditors  of  the  husband. 

In  marshalling  assets,  lands  descended,  are  to  be  applied  before  lands  devised. 

Evidence  of  declarations,  made  by  a  husband  during  coverture,  is  not  admissible 
against  creditors  of  the  husband,  to  establish  a  secret  parol  agreement 
between  him  and  the  wife,  in  reference  to  property  standing  in  the  husband's 
name  during  his  lifetime. 

But  if  the  wife  had  performed  her  part  of  an  agreement,  made  between  her 
husband  and  herself,  she  would  have  an  equity  as  against  the  husband  and 
his  heirs,  to  have  it  carried  into  effect  on  their  side,  though  the  agreement 
was'only  by  parol. 

The  court  does  not  favor  secret  trusts,  and  will  not  allow  them  to  be  set  up  to 
defeat  the  rights  of  creditors. 

If  it  could  be  proved,  that  the  land  was  purchased  with  the  wife's  money,  then 
as  between  her  and  the  heirs  at  law,  or  volunteers  claiming  under  her  hus- 
band, a  trust  would  result  to  her,  being  implied  by  law,  from  the  intention 
of  the  parties,  and  the  justice  of  the  case,  and  which  being  expressly  except- 
ed  from  the  statute  of  frauds,  may  be  proved  by  parol. 

But  such  resulting  trust  cannot  be  set  up  to  the  prejudice  of  the  rights  of  sub- 
sequent creditors. 

The  act  of  1785,  ch.  72,  sec.  11,  authorizes  the  court  to  direct  a  deed  to  be  re- 
corded, but  with  a  limitation,  that  it  shall  not  effect  the  rights  of  creditors 
becoming  such  after  the  execution  of  the  deed. 

Where  a  party  holding  a  bond  of  conveyance  is  in  possession,  and  has  paid 
the  purchase  money  for  the  land,  the  court  will  direct  a  conveyance,  which 
will  prevail  against  creditors  whose  judgments  intervened  between  the 
equitable  title  by  the  bond  and  the  legal  title  by  the  decree. 

Where  two  persons  executed  a  joint  note,  the  estate  of  the  one,  will,  under  the 
chancery  rule,  be  charged  with  only  half  the  amount,  unless  it  is  shown, 
that  he  is  the  principal  debtor,  or  that  the  other  is  insolvent. 

The  weight  of  American  authority,  is,  that  it  is  sufficient  to  bind  a  surety  if 
his  engagement  to  pay  the  debt  of  another  is  in  writing,  although  the  considera- 
tion may  not  be  reduced  to  writing.  But  where  both  the  consideration  and  the 
engagement  are  in  writing,  the  surety  is  bound,  even  according  to  the  strict 
English  construction  of  the  statute  of  frauds. 


524  HIGH  COURT  OF  CHANCERY. 

[This  suit  originated  in  the  filing  of  a  creditor's  bill  on  the 
equity  side  of  Charles  County  Court,  on  the  12th  of  Novem- 
ber, 1840,  against  Maria  C.  Brawner,  executrix,  and  the  heirs 
and  devisees  of  Henry  Brawner,  deceased,  and  was  subse- 
quently transferred  to  this  court,  under  the  Act  of  Assembly  in 
relation  to  such  cases  depending  in  the  county  courts,  consti- 
tuting the  First  Judicial  District. 

Maria  C.  Brawner  departed  this  life  in  the  latter  part  of  July, 
1847,  and  on  the  22d  of  February,  1848,  a  bill  of  revivor  was 
filed  against  the  defendant,  Dent,  as  administrator  d.  b.  n.  of 
said  Brawner. 

One  of  the  claims  of  the  suing  creditors  is  founded  upon  a 
promissory  note  made  by  said  Brawner  and  one  Ignatius  Stew- 
art, in  favor  of  Brooks,  Stephens  &  Co.,  dated  the  22d  of 
April,  1837,  for  the  sum  of  $2112,  and  payable  six  months 
after  date.  The  other  is  on  an  open  account  for  articles  of 
merchandise  sold  to  said  Stewart  on  the  15th  of  October, 
1836,  and  amounting  to  the  sum  of  $1901  30,  with  interest  to 
the  18th  of  September,  1838,  on  the  credit  of  a  letter  from  said 
Brawner,  undertaking  the  payment  of  the  same;  of  which  the 
original  being  lost,  parol  proof  was  offered. 

Henry  Brawner  departed  this  life  sometime  in  the  fall  of 
1838,  having  first  made  and  duly  published  his  last  will  and 
testament,  by  which  he  devised  to  bis  wife,  Maria  C.  Brawner, 
in  fee,  a  tract  of  land  called  "Elleslie,"  and  constituted  her  his 
sole  executrix,  which  office  she  undertook,  and  returned  an  in- 
ventory of  his  personal  estate,  amounting  to  $7943. 

This  tract  was  purchased  by  the  testator,  at  a  chancery  sale, 
made  in  1825  or  1826,  by  Daniel  Jenifer,  acting  as  trustee,  for 
the  sum  of  $5161  87,  and  was  conveyed  to  him  by  the  trustee, 
on  the  22d  of  August,  1835,  and  it  continued  until  his  death, 
upon  the  land  records  of  Charles  county,  as  his  absolute  prop- 
erty and  estate. 

Mrs.  Brawner,  the  widow  and  devisee,  in  her  answer,  claims 
this  tract  of  land  as  her  own,  or  that  she  must  be  regarded  as 
a  preferred  creditor  thereof,  by  reason  of  an  agreement  between 
her  and  her  husband,  set  up  in  her  answer,  that  she  would  con- 


BROOKS  VS.  DENT.  525 

sent  to  the  sale  of  her  maiden  real  estate  upon  the  condition 
that  the  proceeds  thereof  should  be  invested  in  other  real  estate 
for  her  benefit.  This  tract  called  "Elleslie,"  the  answer  alleges, 
was  purchased  by  her  husband  in  conformity  with  said  agree- 
ment, and  should  be  now  regarded  as  her  estate,  or  subject  to 
her  claim,  as  a  preferred  creditor. 

The  case  shows  that  a  parcel  of  land  inherited  by  Mrs. 
Brawner,  was  sold  and  conveyed  by  her  and  her  husband  to 
the  purchaser,  in  April,  1826,  for  the  sum  of  $4500 ;  and 
there  is  parol  evidence  in  the  record  to  show  that  Brawner,  her 
husband,  had  been  several  times  heard  to  say,  that  he  had  paid 
for  "Elleslie  in  part  with  her  money  received  from  the  sale  of 
the  land  of  his  wife,  and  that  it  was  intended  for  her  in  lieu  of 
the  land  which  had  belonged  to  her,  and  which  had  been  sold 
as  aforesaid,"  and  in  a  clause  of  his  will  there  is  a  declaration 
to  the  same  effect. 

The  plea  of  limitations  was  also  made  to  these  claims,  and 
the  statute  of  frauds  relied  upon  as  a  defence  to  the  one  upon 
open  account. 

The  Chancellor,  after  stating  the  facts,  said  :] 

THE  CHANCELLOR : 

The  case  presents,  and  there  have  been  discussed  at  the  bar, 
one  or  two  questions  of  considerable  interest,  and  upon  these 
the  opinion  of  the  court  will  be  briefly  expressed. 

The  question  first  to  be  considered,  is,  how  far  this  alleged 
agreement  between  husband  and  wife,  supposing  the  proof  of- 
fered to  establish  it  to  be  sufficient  for  that  purpose,  and  to  pro- 
ceed from  an  exceptionable  source,  can  be  set  up  in  prejudice 
of  the  claims  of  creditors  who  became  such  subsequently  to 
its  date  ? 

It  is  not  doubted  that  a  husband  and  wife  may  contract  for  a 
bona fide  and  valuable  consideration,  for  a  transfer  of  property 
from  him  to  her,  as  was  said  by  the  Chancellor  in  Livingston 
vs.  Livingston,  2  Johns.  Ch.  Rep.,  537  ;  see  also  Atherly  on 
Marriage  Settlements,  160,  161.  Nor  can  it  be  questioned, 
that  a  settlement  upon  the  wife  after  marriage,  in  pursuance  of 


526  HIGH  COURT  OF  CHANCERY. 

a  valid  agreement  before  marriage,  may  be  good  and  binding 
as  against  the  creditors  of  the  husband.  But  this  is  not  the 
case  of  a  settlement  either  before  or  after  marriage.  Here 
there  has  been  no  settlement  at  all,  and  the  question  is,  whether 
this  particular  parcel  of  land  is  so  impressed  with  a  trust  for 
the  benefit  of  Mrs.  Brawner,  as  to  protect  it  from  the  claims  of 
the  creditors  of  her  husband. 

It  is,  to  be  sure,  contended  by  the  counsel  of  Mrs.  Brawner, 
that  she  claims  the  legal  title  under  the  devise  to  her  in  the 
will.  But,  if  she  rests  her  defence  upon  that  title,  she  must  be 
regarded  as  a  volunteer,  and  take  subject  to  the  claims  of  cred- 
itors ;  though,  in  marshalling  the  assets,  the  estate  devised  to 
her,  could  not  be  reached  until  the  descended  lands,  if  any,  are 
iirst  disposed  of.  4  Kent's  Com.,  421 ;  Chase  vs.  Loc/cerman, 
11  G.  4r  /.,  185. 

It  is  to  be  observed,  that  the  only  proof  of  the  agreement  is- 
to  be  found  in  the  parol  declaration  of  the  husband,  made  dur- 
ing the  coverture,  and  it  needs  but  little  consideration  to  show 
how  dangerous  it  would  be  to  allow  such  evidence  to  defeat 
the  rights  of  creditors.  The  observations  of  Chancellor  Kent 
upon  this  subject,  in  the  case  of  Reade  vs.  Livingston,  3  Johns. 
Ch.  Rep.,  488,  are  full  of  instruction. 

The  objection  is  not  placed  upon  the  ground  that  the  agree- 
ment was  by  parol,  because,  though  by  parol,  still,  if  carried 
into  effect  on  the  part  of  the  wife,  by  selling  her  maiden  estate, 
she  would  have  an  equity  as  against  the  husband  or  his  heirs, 
to  have  it  carried  into  effect  on  their  side ;  and  the  statute  of 
frauds  would  interpose  no  obstacle.  The  objection  is,  that  the 
proof  of  the  agreement  is  derived  exclusively  from  declarations 
made  by  the  husband  during  the  coverture  ;  the  admissibility 
of  which  declarations,  for  such  a  purpose,  in  opposition  to  the 
rights  of  creditors,  it  seems  to  me,  is  very  questionable. 

But,  waiving  that  objection,  and  supposing  the  agreement 
set  up  in  the  answer  was  in  proof  by  a  witness  who  was  pres- 
ent when  it  was  made,  I  am  still  of  opinion,  that,  as  against 
the  creditors  of  the  husband,  and  particularly  those  who  be- 
came such  after  the  title  to  the  land  was  vested  in  him,  it  can- 
not be  allowed  to  stand. 


BROOKS  VS.  DENT.  527 

The  trust  created  by  that  agreement  was  a  secret  trust.  It 
dates  back  to  the  year  1825  or  1826,  and  though  Mr.  Brawner 
lived  until  the  fall  of  1838,  and  the  record  title  was  in  him  from 
the  month  of  August,  1825,  no  attempt  was  made  during  his 
life  to  assert  any  right  or  title  founded  upon  the  agreement.  So 
far  as  the  record  in  this  case  informs  us,  the  first  assertion  of 
this  right  on  the  part  of  Mrs.  Brawner,  was  made  in  her  an- 
swer to  this  bill,  filed  in  September,  1845. 

Now,  it  seems  to  me,  it  would  be  establishing  a  precedent 
of  the  most  pernicious  and  perilous  character,  to  allow  these 
secret  trusts  to  be  set  up  to  defeat  the  rights  of  creditors.  If 
the  alleged  agreement  had  been  performed  by  the  husband,  and 
the  title  of  the  wife  placed  upon  the  public  records  of  the 
county,  the  case  would  have  presented  very  different  consider- 
ations. But  here  is  a  case,  in  which,  as  early  as  1825  or  1826, 
the  husband  became  the  purchaser  of  the  property  in  question, 
at  a  sale  made  under  the  authority  of  a  Court  of  Chancery, 
and  from  the  year  1835  until  the  answer  of  the  wife  was  filed 
in  this  cause,  in  1845,  his  title  was  spread  upon  the  public  land 
records  of  the  county,  and  he  was  held  out  to  the  world  as  its 
undisputed  owner. 

As  I  am  fully  persuaded  the  secret  agreement  put  forward  in 
the  answer  of  Mrs.  Brawner,  cannot  avail  her,  even  if  shown 
to  exist  by  unexceptionable  evidence,  as  against  the  creditors 
of  her  husband,  or  at  all  events  against  subsequent  creditors, 
it  remains  to  be  seen  whether  she  can  successfully  assert  a  ti- 
tle to  the  property  upon  any  other  ground. 

If  it  could  be  shown  clearly,  that  the  money  with  which  this 
land  was  purchased,  was  supplied  by  the  wife,  a  trust  might 
result  to  her,  being  implied  by  law,  from  the  intention  of  the 
parties,  and  the  nature  and  justice  of  the  case  ;  and  such  trust, 
being  expressly  excepted  from  the  operation  of  the  statute  of 
frauds,  may  be  proved  by  parol,  not  only  against  the  face  of 
the  deed  itself,  but  even  in  opposition  to  the  answer  of  the 
trustee,  and  possibly  after  the  death  of  the  nominal  purchaser. 
Boyd  vs.  McLean  et  al.,  Johns.  Ch.  Rep.,  582  ;  Dorsey  vs. 
Clarke  et  al.,  3  H.  if  /.,  551 ;  Maccubbin  vs.  Cromwell,  7 
G.  <£•  /.,  157  ;  Bottsford  vs.  Burr,  2  Johns.  Ch.  Rep.,  405. 


528  HIGH  COURT  OF  CHANCERY. 

If,  then,  this  was  a  contest  between  Mr.  Brawner  and  the  heirs 
at  law  of,  or  persons  claiming  as  volunteers  under  her  husband, 
and  it  could  be  made  out,  by  clear  and  satisfactory  proofs,  that 
the  money  with  which  "Elleslie"  was  paid  for  was  advanced 
by  Mrs.  Brawner,  there  might,  perhaps,  be  no  difficulty  in  de- 
claring, that  a  trust  resulted  to  her  by  operation  of  law.  This, 
however,  is  not  a  case  between  her  and  volunteers  under  her 
husband.  The  rights  of  subsequent  creditors  are  involved  here, 
and  the  question  is,  whether,  assuming  the  proof  to  be  admis- 
sible and  adequate,  a  trust  of  which  they  could  have  had  no 
knowledge,  and  which  results  only  by  construction  of  law,  and 
to  subserve  the  purposes  of  justice,  as  between  the  party  in 
whose  name  the  conveyance  is  taken  and  him  by  whom  the 
purchase  money  is  paid,  shall  be  set  up  to  their  prejudice. 

No  case  has  been,  or,  it  is  believed  can  be,  produced,  to 
establish  the  affirmative  of  this  proposition ;  and  it  seems  to  me 
not  only  replete  with  danger  and  mischief,  but  to  be  in  conflict 
with  settled  principles. 

Under  the  act  of  1785,  ch.  72,  sec.  11,  a  deed,  to  the  validi- 
ty of  which  recording  is  necessary  by  law,  may  be  recorded  by 
a  decree  of  this  court,  with  a  limitation,  however,  that  it  shall 
not  in  any  way  affect  the  creditors  of  the  party  making  such 
deed,  who  may  trust  such  party  after  the  date  of  the  deed  ;  and, 
therefore,  as  to  those  creditors  who  trusted  Mr.  Brawner  after 
the  date  of  the  alleged  payment  with  the  money  of  the  wife, 
even  if  a  deed  had  been  executed  by  him  declaring  the  trust, 
and  that  deed  had  been  withheld  from  the  records  it  could  now 
only  be  recorded  or  enforced,  with  the  savings  of  the  rights  of 
these  creditors,  as  expressed  in  the  proviso  of  the  statute.  Pan- 
nell  &  Smith  vs.  Farmers'  Bank,  7  H.  &  /.,  202. 

There  can  be  no  doubt,  as  was  said  by  the  Court  of  Appeals 
in  Alexander  et  al.  vs.  Ghiselin  et  aL,  5  Gill,  181,  that  this 
court  may  direct  a  conveyance,  where  a  party  holding  a  bond 
of  conveyance  is  in  possession,  and  has  paid  the  purchase 
money  ;  and  that  such  conveyance  will  prevail  against  creditors 
whose  judgments  intervened  between  the  equitable  title  by  the 
bond  and  the  legal  title  by  the  decree  and  deed. 


BROOKS  VS.  DENT.  529 

But  here  there  was  no  possession  delivered,  nor  bond  of  con- 
veyance or  other  instrument  of  writing  executed.  On  the  con- 
trary, Mr.  Brawner,  the  husband,  retained  the  possession  and 
use  of  the  property  to  the  day  of  his  death,  and  was,  according 
to  all  the  manifestations  of  title  known  to  the  law,  the  absolute 
and  unqualified  owner  of  it.  The  title  now  set  up  as  against 
his  creditors,  who  trusted  him  upon  the  faith  of  this  property; 
rests  either  upon  a  'secret  verbal  agreement,  or  upon  the  legal 
doctrine  adopted  to  advance  the  purposes  of  justice  as  between 
the  party  who  actually  pays  the  money  and  him  to  whom  the 
conveyance  is  made,  that  a  trust  results  in  favor  of  the  former, 
and  will  be  enforced  in  equity  as  against  the  latter.* 

But,  in  a  case  like  the  present,  and  as  against  subsequent 
creditors,  I  am  of  opinion,  no  such  trust  can  be  raised,  or  results 
by  legal  implication  ;  and  with  respect  to  the  verbal  agreement 
relied  upon  in  the  answer,  and  already  spoken  of,  it  having  ref- 
erence to  land,  and  thus  being  unlike  the  case  of  Alexander  vs. 
Ghiselin,  would  be  void  by  the  statute  of  frauds,  as  expressly 
stated  by  the  court  in  that  case. 

I,  therefore,  think  no  reason  has  been  shown  why  the  tract 
of  land  called  "Elleslie"  should  not  be  liable  to  be  sold  to  pay 
the  creditors  of  the  deceased  Henry  Brawner. 

This  bill  was  filed  on  the  12th  of  November,  1840,  and  the 
promise  by  Mr.  Brawner,  as  proved  by  Judge  Grain,  in  July  or 
August,  1838,  is,  in  my  opinion,  a  complete  answer  to  the  plea 
of  limitations. 

With  regard  to  the  claim  founded  upon  the  promissory  note 
signed  by  Stewart  and  the  deceased,  there  being  no  evidence 
either  that  the  latter  was  the  principal  debtor,  or  that  Stewart 
is  insolvent,  I  do  not  think  that,  according  to  the  Chancery 
rule,  the  estate  of  the  deceased  can  be  charged  with  more  than 
one-half  that  debt ;  but,  as  stated  during  the  argument,  the 
question  will  be  reserved,  with  liberty  to  the  complainants  to 
introduce  proof  to  obviate  the  objection. 

The  statute  of  frauds  is  relied  upon  as  a  defence  against  the 
claim  founded  upon  the  open  account,  and  it  is  insisted  that 
this  is  an  attempt  to  charge  the  estate  of  the  deceased  with  the 
VOL.  i — 45 


530  HIGH  COURT  OF  CHANCERY. 

debt,  default  or  miscarriage  of  another,  contrary  to  the  provision 
of  the  fourth  section  of  that  statute ;  which  declares  that  a  par- 
ty shall  not  be  so  charged,  "unless  the  agreement  upon  which 
such  action  shall  be  brought,  or  some  memorandum  or  note 
thereof  shall  be  in  writing,  and  signed  by  the  party  to  be  charg- 
ed therewith,  or  some  other  person  thereunto  by  him  properly 
authorized." 

The  evidence  of  Judge  Grain  conclusively  proves  that  an 
agreement  was  signed  by  the  late  Mr.  Brawner,  binding  him  to 
pay  this  debt,  and  that  it  is  lost,  and  upon  diligent  search  can- 
not be  found.  Secondary  evidence  of  the  contents  of  the  agree- 
ment, which  was  in  the  form  of  a  letter  from  the  deceased  to 
Brooks,  Stephens  &  Co.,  is,  therefore,  admissible,  and,  it  ap- 
pears to  me,  taken  in  connection  with  the  other  evidence,  to 
furnish  a  full  answer  to  the  statute  of  frauds. 

It  might  not  be  very  easy  to  determine  whether  the  engage- 
ment of  Mr.  Brawner  in  this  case  is  a  collateral  or  original  one  ; 
and  even  though  collateral,  whether  it  might  not  be  classed 
with  those  engagements,  which  being  made  at  the  time  of  the 
principal  contract,  was  an  essential  ground  of  the  credit  given 
to  the  principal  debtor,  thus  forming  an  original  and  entire 
transaction ;  and  resting  upon  the  consideration  upon  which 
the  whole  debt  rested,  may  not  be  shown  by  parol  proof, 
as  not  being  within  the  statute,  as  was  decided  in  Seward  vs. 
Vrendenburgh,  8  Johns.  Ch.  Rep.,  29,  confirmed  in  other  cases 
in  New  York,  and  declared  to  be  the  reasonable  doctrine  in  De 
Wolf  vs.  Raband  et  al.,  1  Peters  S.  C.  Rep.,  476. 

But  the  agreement  in  this  case,  as  proved  by  the  witness,  is 
in  strict  conformity  with  the  statute,  both  the  engagement  and 
consideration  being  in  writing,  even  if  it  be  necessary  that  the 
latter  should  be  in  writing,  which,  however,  is  said,  by  an  emi- 
nent judge,  to  be  against  the  weight  of  American  authority.  3 
Kent's  Com.,  122,  note  e. 

The  witness  says,  he  called  on  Mr.  Brawner  in  July,  1838, 
for  the  payment  and  settlement  of  these  claims,  that  Mr.  Braw- 
ner admitted  his  indebtedness,  that  the  claim  on  the  open  ac- 
count was  predicated  on  a  letter  written  by  Mr.  Brawner  to 


BROOKS  VS.  DENT.  531 

Brooks,  Stephens  &  Co.  requesting  them  to  let  Mr.  Stewart 
have  goods. 

The  witness  then  goes  on  to  speak  of  another  conversation 
with  Mr.  Brawner,  immediately  preceding  the  August  term  of 
the  County  Court  in  1838,  when  he  begged  the  witness  not  to 
sue  him,  and  to  write  to  Chauncy  Brooks  that  he  would  cer- 
tainly make  an  early  arrangement  to  pay  the  money — that  the 
witness  did  write  accordingly,  desiring  him  to  indulge  Mr.  Braw- 
ner, and  that  he  would  not  sue  him,  as  he  considered  Mr.  Braw- 
ner perfectly  safe,  and  that  Mr.  Brooks  left  it  to  his  discretion. 
And  upon  cross-examination  the  witness  said,  that  "the  letter 
stated  that  he,  Henry  Brawner,  would  be  answerable  for  any 
goods  bought  by  Stewart  from  Brooks.  It  was  dated,  as 
nearly  as  I  [he]  can  recollect,  in  1836,  and  before  the  date  of 
the  account,  which  Mr.  Brawner  recognized  to  be  correct,  and 
promised  to  pay." 

If,  therefore,  Stewart  is  liable  upon  this  contract,  and  the  en- 
gagement of  Brawner  is  to  be  regarded  as  a  collateral  promise, 
which,  however,  does  not  necessarily  follow  from  the  fact  that 
the  account  is  made  out  against  Stewart,  still,  the  undertaking 
being  in  writing,  and  the  consideration  being  likewise  in  writ- 
ing, the  case  seems  entirely  free  from  difficulty,  even  if  the 
English  construction  of  the  statute  of  frauds,  requiring  both  to 
to  be  in  writing,  be  adopted  here. 

I  am,  therefore,  of  opinion,  that  the  statute  of  frauds  is  no 
defence  against  this  claim,  and  that  it  is  sufficiently  proved. 

I  do  not  understand  it  to  be  insisted  that  the  personal  estate 
of  the  deceased  is  adequate  to  pay  his  debts,  and,  my  opinion 
is,  that  there  is  satisfactory  evidence  of  the  insufficiency  to 
authorize  a  decree  for  the  sale  of  the  realty. 

The  counsel  for  the  complainants  may,  therefore,  prepare  a 
decree  for  that  purpose,  in  which  the  question  in  reference  to 
the  liability  of  the  estate  of  the  deceased,  for  the  whole  amount 
of  the  note  before  mentioned,  will  be  reserved,  and  with  a  fur- 
ther reservation  of  the  right  of  Mrs.  Brawner,  or  her  personal 
representative,  to  establish  her  claim  as  a  creditor,  with  respect 


532  HIGH  COURT  OF  CHANCERY. 

to  the  proceeds  which  may  be  derived  from  the  sale  of  "Elles- 
lie,"  as  against  the  heirs  at  law  or  devisees  of  her  husband,  and 
of  all  other  questions  not  settled  by  this  opinion. 


GEORGE  H.  KEERL 

AND 

HENRY  K.  FULTON 

vs. 
ROBERT  FULTON. 


MARCH  TERM,  1850. 


[CONSTRUCTION  OF  A  WILL — LIMITATION  OF  ESTATE — CCRTEST.] 

A  TESTATOR  devised  and  bequeathed  certain  portions  of  his  real  and  personal 
estate,  to  trustees,  in  trust  for  his  daughter  during  her  life,  and  after  her 
death,  in  trust  for  any  child,  or  children,  she  might  have,  with  direction 
"that  the  trustees,  or  the  survivor  of  them,  should,  after  the  death  of  his 
said  daughter,  convey  and  assign  unto  her  children,  if  she  should  have,  or 
leave,  any  at  the  time  of  her  death,  in  equal  proportions,  absolutely,  all  the 
money  and  estate  in  his  will  devised  and  bequeathed  unto  the  said  trustees,  for 
the  use  and  benefit  of  his  daughter  and  her  children  :  provided,  always,  that 
no  such  conveyance  or  assignment  should  be  made,  until  the  child  or  children, 
to  whom  the  same  was  to  be  made,  shall  have  severally  attained  the  age  of 
twenty-one  years."  The  daughter,  who  survived  the  testator,  died,  leaving 
two  sons,  one  of  whom  died  intestate  and  without  issue,  before  attaining  the 
age  of  twenty-one  years.  HELD — 

That  the  deceased  son  of  the  testator's  daughter,  had  a  vested  interest  in  the 
estate  devised  and  bequeathed  to  his  mother  for  life,  and  that,  upon  her 
death,  and  when  he,  if  living,  would  have  attained  the  age  of  twenty-one, 
the  trustees  would  have  been  bound  to  convey  and  assign  to  him,  his  propor- 
tion of  said  estate. 

That  his  representatives  can  only  claim  as  he  could  have  done,  if  living,  and 
as  he  had  no  power  to  call  for  the  legacy  before  he  attained  twenty-one,  so 
neither  can  his  representatives  insist  upon  the  payment  of  it  sooner. 

The  same  will  contained  the  following  clause  :  "After  the  death  of  my  said 
wife,  I  give,  devise  and  bequeath,  all  the  rest,  residue  and  remainder  of  my 
estate,  real,  personal,  and  mixed,  unto  my  said  children,  (naming  his  six 
sons,)  and  to  the  said  trustees,  for  my  said  daughter,  as  aforesaid,  to  be 
divided  into  equal  proportions,  for  my  said  seven  children,  and  to  their  heirs, 
executors  and  assigns  forever."  The  daughter  died,  leaving  the  widow  of  the 
testator.  HELD — 

That  the  daughter  took  an  absolute  title  in  remainder,  in  one-seventh  of  this 
rest  and  residue,  upon  the  death  of  the  widow,  to  whom  a  life-estate  was 
given. 


BJSERL  VS.  FULTON.  533 

That  upon  the  death  of  the  widow,  this  ona-seventh  will  descend  to  the  heirs 
at  law  of  the  daughter,  without  being  liable  to  the  curtesy  of  her  husband, 
she  not  having  been  seized  in  fact,  and  in  deed,  of  this  estate,  during  the 
coverture. 

[The  testator,  Henry  Keerl,  by  his  will,  which  was  proved 
in  July,  1827,  devised  and  bequeathed  to  his  friend,  Charles 
Bohn,  (who  renounced  the  trust,)  and  his  son,  George  H. 
Keerl,  portions  of  his  real  and  personal  estate,  to  be  held  by 
them  in  trust  for  his  daughter,  Amelia  H.  Keerl,  during  her 
life,  free  from  the  control  of  any  future  husband,  and  after  her 
death,  in  trust  for  any  child  or  children  she  might  have ;  with 
the  further  direction  and  declaration,  "that  the  trustees  or  the 
survivor  of  them,  should,  after  the  death  of  his  said  daughter, 
convey  and  assign  unto  her  children,  if  she  should  have  or 
leave  any  at  the  time  of  her  death,  in  equal  proportions,  abso- 
lutely, all  the  money  and  estate  in  his  will  devised  and  be- 
queathed unto  the  said  trustees  for  the  use  and  benefit  of  his 
daughter  arid  her  children  ;  provided,  always,  that  no  such 
conveyance  or  assignment  should  be  made  until  the  child  or 
children,  to  whom  the  same  was  to  be  made,  shall  have  sever- 
ally attained  the  age  of  twenty-one  years." 

The  will  further  directed,  that  in  case  the  said  daughter 
should  die  without  leaving  issue  or  descendants  of  such  issue, 
one  moiety  of  the  estate  given  to  her  for  life  should  pass  to  her 
husband,  if  any  such  should  survive  her,  and  the  remaining 
moiety  to  the  other  children  of  the  testator  and  their  repre- 
sentatives. 

The  will  also  contains  the  following  provision  with  regard  to 
the  estate  given  to  the  wife  of  the  testator,  who  survived  him, 
and  is  still  living :  "After  the  death  of  my  said  wife,  I  give, 
devise  and  bequeath  all  the  rest,  residue  and  remainder  of  my 
estate,  real,  personal  and  mixed,  unto  my  said  children  (naming 
his  six  sons)  and  to  the  said  Charles  Bohn  and  George  H. 
Keerl,  as  trustees,  for  my  said  daughter,  Amelia  H.,  as  afore- 
said, to  be  divided  into  equal  proportions  for  my  said  seven 
children,  and  to  their  heirs,  executors  and  assigns  forever." 
45* 


534  HIGH  COURT  OF  CHANCERY. 

Amelia,  the  daughter  of  the  testator,  survived  him,  and,  after 
intermarrying  with  the  defendant,  Robert  Fulton,  herself  died, 
leaving  as  her  only  issue  two  sons,  the  fruit  of  the  marriage, 
one  of  whom,  Robert  Henry  Fulton,  subsequently  died  on  the 
24th  of  February,  1849,  aged  eighteen  years  and  five  months, 
unmarried  and  without  issue,  leaving  surviving  him  his  brother, 
Henry  K.  Fulton,  one  of  the  complainants,  and  the  defendant, 
his  father. 

The  bill  in  this  case  was  filed  by  the  trustee  Keerl  and  the 
surviving  son  of  the  testator's  daughter  Amelia,  for  the  pur- 
pose of  obtaining  the  aid  and  direction  of  the  court  with  re- 
spect to  the  estate ;  and  also  with  regard  to  the  estate,  real, 
personal  and  mixed,  which,  upon  the  death  of  the  testator's 
wife,  was  limited  over  to  his  seven  children,  including  the 
daughter,  in  equal  proportions. 

The  case  being  submitted  upon  an  agreement  in  writing, 
without  argument,  the  Chancellor,  after  stating  the  facts, 
said  :] 

THE  CHANCELLOR: 

I  think  there  can  be  no  doubt,  that  the  deceased  son  of  the 
testator's  daughter  had  a  vested  interest  in  the  estate  devised 
and  bequeathed  to  his  mother  for  life,  and  that  upon  her  death, 
and  when  the  proper  time  shall  have  arrived — that  is,  when  the 
son,  if  living,  would  have  attained  the  age  of  twenty-one 
years — the  trustees  would  have  been  bound  to  convey  and  as- 
sign to  such  son  his  proportion  of  said  estate.  The  will  gives 
the  daughter  an  estate  for  life,  and  upon  her  death,  if  she  should 
leave  children,  the  limitation  over  to  them  is  absolute,  in  equal 
proportions.  When  the  daughter  died,  therefore,  her  two  sons 
surviving  her,  true  estate  vested  in  them  absolutely,  the  convey- 
ance or  assignment  only  being  postponed  until  they  should  re- 
spectively attain  the  designated  age,  to  wit,  twenty-one.  The 
time  was  only  annexed  to  the  conveyance  or  transfer,  and  not 
to  the  gift  of  the  legacy  ;  and  hence  it  was  not  at  all  material, 
with  reference  to  the  rights  of  the  representatives  of  the  lega- 
tees, whether  they  attained  the  age  of  twenty-years  or  not. 


KEERL  VS.    FULTON.  535 

1  Roper  on  Legacies,  376,  sec.  2,  and  the  cases  there  referred 
to,  clearly  establish  this  to  be  the  doctrine. 

As,  however,  by  the  express  terms  of  the  will,  the  convey- 
ance or  assignment  was  not  to  be  made  by  the  trustees  until 
the  child  or  children  of  the  testator's  daughter  should  have 
severally  attained  the  age  of  twenty-one  years,  so  neither  can 
it  now  be  made  to  the  representatives  of  the  deceased  son,  who 
died  under  that  age,  until,  if  living,  he  would  have  attained  it. 
The  rule  upon  this  subject  is  this — "that  if  a  legacy  be  given 
to  A.  to  be  paid  at  twenty-one  years,  and  the  intermediate  in- 
terest is  not  given,  and  A.  die  before  that  period,  his  represen- 
tative must  wait  for  the  money  until  A.,  if  living,  would  have 
attained  twenty- one  ;  but  if  the  legacy  be  limited  over  to  B.,  on 
the  event  of  A.  dying  under  that  age,  and  A.  die  before  that 
time,  B.  will  be  entitled  to  call  for  it  immediately  upon  the  death 
of  A."  But  as  the  representatives  of  A.  can  only  claim  as  he 
could  have  done,  if  living,  and  as  he  had  no  power  to  call  for 
the  legacy  before  he  attained  twenty-one,  so  neither  can  his  re- 
presentatives insist  upon  the  'payment  of  it  sooner.  Crickett 
vs.  Dolby,  3  Ves.  Jr.,  10. 

I  am,  therefore,  of  opinion,  that  though  the  legacy  vested  in 
Robert  Henry  Fulton,  the  deceased  son  of  the  testator's  daugh- 
ter, yet  his  representative  cannot  demand  it  until  the  period  ar- 
rives when  he,  if  living,  would  have  been  entitled  to  receive 
it ;  that  is,  until  he  would  have  attained  the  age  of  twenty-one 
years.  And  when  that  time  shall  have  arrived,  the  personal 
estate,  which  devolved  upon  him  on  the  death  of  his  mother, 
will  be  payable  to  his  administrator  to  be  appointed  by  the 
Orphans'  Court,  and  will  be  there  administered. 

With  respect  to  the  real  estate  to  which  the  deceased  be- 
came entitled  at  the  same  period,  that,  it  is  conceded  by  the 
answer,  descended  to  his  brother,  Henry  K.  Fulton,  one  of  the 
petitioners. 

When  the  widow  of  the  testator,  who  is  now  living,  shall 
die,  the  time  will  have  arrived  for  dividing  among  the  several 
children  left  by  the  testator,  the  rest,  residue  and  remainder  of 
his  estate ;  and  until  that  event  shall  occur,  there  does  not 


536  HIGH  COURT  OF  CHANCERY. 

seem  to  be  any  necessity  for  giving  any  directions  with  respect 
to  this  portion  of  his  estate.  I  will,  however,  say,  that  it  ap- 
pears to  me  very  clear,  that  the  daughter  of  the  testator  took 
an  absolute  title  in  remainder  in  one-seventh  of  this  rest  and 
residue,  upon  the  death  of  the  widow,  to  whom  a  life-estate 
was  given ;  and  that,  upon  the  death  of  the  widow,  this  one- 
seventh  will  descend  to  the  heirs  at  law  of  the  daughter  with- 
out being  liable  to  the  curtesy  of  her  husband  in  the  realty,  she 
not  having  been  seized  in  fact,  and  in  deed,  of  this  estate  during 
the  coverture.  4  Kent's  Com.,  29,  30.  The  putstanding  life- 
estate  in  the  widow  of  the  testator,  during  the  coverture, 
debars  the  husband  of  his  curtesy. 

[No  appeal  was  taken  in  this  case.] 


THE  BANK  OF  WESTMINSTER 

vs. 

WILLIAM  PINKNEY  WHYTE, 

PERMANENT  TRUSTEE  OF 

GEORGE  SUTER. 

MARCH  TERM,  1850. 
WM.  P.    WHYTE, 
PERMANENT  TRUSTEE  OF 
GEORGE  SUTER 

vs. 
JOHN  FISHER  ET  AL. 


[ABSOLUTE  CONVEYANCE  A  MORTGAGE — RIGHT  op  INSOLVENT  TRUSTEE  TO  SELL 

MORTGAGED  PROPERTY.] 

No  matter  how  absolute  a  conveyance  may  be  on  its  face,  if  the  intention  is  to 
take  a  security  for  a  subsisting  debt,  or  for  money  lent,  the  transaction  will 
be  regarded  as  a  mortgage,  and  will  be  treated  as  such. 

Parol  evidence  is  admissible  to  show,  that  an  absolute  conveyance  was  intend- 
ed as  a  mortgage,  and  that  the  defeasance  was  omitted  or  destroyed,  by  fraud 
or  mistake. 

But,  unless  accident,  fraud,  or  mistake  can  be  shown,  or  in  cases  of  trusts, 
parol  evidence  cannot,  either  at  law  or  in  equity,  be  admitted  to  contradict, 
add  to,  or  vary  the  terms  of  a  will,  deed,  or  other  instrument. 

It  is  the  right  and  duty  of  the  trustee,  in  insolvency,  to  sell  the  mortgaged 
property  of  his  insolvent,  and  pay  off  the  liens  and  incumbrances  thereon. 


BANK  OF  WESTMINSTER  VS.  WHYTE.  537 

Though  the  transfer  made  to  secure  a  debt,  is  in  the  nature  of  a  trust,  still 
it  is  the  duty,  and  the  right  of  the  trustee,  in  insolvency,  to  dispose  of  the 
property. 

[On  the  20th  day  of  November,  1845,  George  Suter,  of  the 
city  of  Baltimore,  being  indebted  to  the  Westminster  Bank  in 
the  sum  of  six  thousand  dollars,  agreed  with  that  institution, 
through  its  cashier  and  agent,  John  Fisher,  that,  in  considera- 
tion of  the  advance  of  three  thousand  dollars,  in  addition  to 
the  sum  already  due  by  him,  he,  the  said  Suter,  would  confess 
judgment  for  the  whole  sum  of  nine  thousand  dollars,  and  also 
by  way  of  security  for  the  repayment  of  the  said  loan  of  three 
thousand  dollars,  would  assign  and  transfer  to  the  said  bank, 
three  butcher  stalls,  held  by  him  in  different  markets  in  the  city 
of  Baltimore.  The  advance  was  made  by  the  bank,  and  the 
judgment  confessed,  and  stalls  assigned  by  Suter. 

On  the  thirteenth  day  of  March,  1846,  Suter  applied  for,  and 
obtained  the  benefit  of  the  insolvent  laws,  and  William  Pink- 
ney  Whyte  was  appointed  his  permanent  trustee. 

The  trustee,  under  the  insolvent  laws,  considering  the  trans- 
fer of  the  said  stalls  by  Suter  as  only  a  security  for  the  pay- 
ment of  the  loan  of  three  thousand  dollars,  and  claiming  the 
disposition  of  said  property  in  his  capacity  of  permanent  trus- 
tee, advertised  the  same  for  public  sale  in  the  city  of  Baltimore, 
to  take  place  on  the  twentieth  of  July  following. 

Before  the  day  appointed  for  the  sale,  a  bill  was  filed  by  the 
Westminster  Bank,  claiming  the  conveyance  made  by  Suter  as 
absolute,  and  the  surplus,  if  any,  after  the  payment  of  the 
three  thousand  dollar  loan,  of  the  money  arising  from  their 
sale,  as  applicable  to  the  part  payment  of  the  prior  debt  of  six 
thousand  dollars,  and  praying  a  writ  of  injunction  against  the 
the  trustee,  prohibiting  such  sale.  An  injunction  was  accord- 
ingly issued  on  the  fourteenth  of  July. 

An  answer  was  filed  on  the  30th  of  July,  1847,  by  the  per- 
manent trustee,  denying  the  title  of  said  bank  to  said  stalls, 
except  by  way  of  mortgage  security,  and  praying  a  dissolution 
of  the  injunction. 

A  bill  was  also  filed  on.  the  10th  of  May,  1847,  by  Whyte, 


538  HIGH  COURT  OF  CHANCERY. 

the  permanent  trustee,  to  set  aside  the  transfer  as  fraudulent  in 
view  of  the  insolvent  laws  ;  and  the  answer  of  the  defendant, 
Fisher,  was  filed  on  the  29th  of  June  following. 

In  October,  1848,  a  sale  was  made  of  said  stalls  by  John 
Fisher,  cashier  of  the  said  bank,  to  one  David  C.  Steiner,  and 
an  order  to  the  market  master  for  the  delivery  of  one  of  the 
said  stalls  given  to  said  Steiner. 

On  the  21st  of  October,  1848,  upon  a  bill  filed  by  the  trus- 
tee, Whyte,  for  that  purpose,  an  order  was  passed  granting  an 
injunction  against  the  said  Fisher  and  Steiner,  and  the  market 
master,  commanding  them  to  refrain  from  interfering  in  any 
way  with  said  property,  until  the  further  order  of  the  court. 

Upon  the  motion  to  dissolve  the  injunction  granted  upon  the 
bill  of  the  Bank  of  Westminster,  the  Chancellor  said  :] 

THE  CHANCELLOR  : 

These  cases  have  been  argued  together,  and  are  so  con- 
nected, as  in  the  view  of  the  counsel  and  the  court,  to  consti- 
tute but  one  suit. 

The  pecuniary  interest  involved  is  inconsiderable,  but  the 
questions  which  the  case  present  are  not  unimportant. 

The  general  rule  is  too  firmly  established  to  be  questioned, 
that  no  matter  how  absolute  a  conveyance  may  be  on  its  face, 
if  the  intention  is  to  take  a  security  for  a  subsisting  debt,  or 
for  money  lent,  the  transaction  will  be  regarded  as  a  mortgage, 
and  will  be  treated  as  such.  Hicks  vs.  Hicks ,  5  Gill  fy  Johns., 
75 ;  Dougherty  vs.  McColgan,  6  G.  &  J.,  275. 

And  though  the  defeasance  was  by  an  agreement  resting  in 
parol,  still,  as  between  the  parties,  the  deed,  though  absolute  on 
its  face,  will  be  considered  a  mortgage,  for  parol  evidence  is 
admissible  to  show  that  an  absolute  conveyance  was  intended 
as  a  mortgage,  and  that  the  defeasance  was  omitted  or  de- 
stroyed by  fraud  or  mistake.  2  Kent's  Com.,  142, 143  ;  Hender- 
son vs.  Mayhew  et  al.,  2  Gill,  393. 

But  it  is  likewise  undeniably  true,  that  unless  accident, 
fraud,  or  mistake,  can  be  shown,  or  in  cases  of  trusts,  parol 
evidence  cannot  either  at  law  or  in  equity,  "be  admitted  to 


BANK  OF  WESTMINSTER  VS.  WHYTE.  539 

contradict,  add  too,  or  vary  the  terras  of  a  will,  deed  or  other 
instrument."  Bend  vs.  The  Susquehanna,  fyc.  Co.,  6  H.  fy  J., 
128;  Watkins  vs.  Stockett,  to.,  435. 

In  this  case,  the  transfer  of  the  three  stalls  is  absolute  and 
unconditional,  and  if  there  was  nothing  in  the  answer  of  Mr. 
Fisher,  to  whom  the  transfers  were  made,  and  who  acted  as 
the  agent  of  the  bank  in  the  negotiation  with  Suter,  from 
which  it  could  be  fairly  inferred  that  the  object  was  to  take  se- 
curity for  money  loaned,  or  to  be  loaned,  it  would  fall  within  the 
general  rule  ;  and  the  transfer  could  not  be  qualified  by  the  in- 
troduction of  parol  evidence,  neither  fraud  nor  mistake  being 
alleged. 

But,  looking  to  the  pleadings  in  the  cause,  and  especially  to 
the  answer  of  Fisher,  to  the  bill  filed  by  \Vhyte,  as  the  perma- 
nent trustee  of  Suter,  to  set  aside  the  transfer  as  fraudulent  in 
view  of  the  insolvent  laws,  which  answer  is  invoked  in  these 
causes,  and  has  been  read  without  objection,  and  there  can,  I 
think,  be  no  doubt  that  the  transfer  of  the  stalls  was  taken  as 
security  for  the  repayment  of  the  money  due  to  the  bank,  and 
not  absolutely  by  way  of  purchase. 

The  language  of  the  answer  is,  "that  the  said  sum  of  three 
thousand  dollars  was  not  lent  specifically  upon  the  security  of 
the  three  stalls  in  different  markets  in  the  city  of  Baltimore, 
but  on  the  joint  security  of  said  stalls  and  other  property  of 
said  Suter,  which,  at  the  time  was  believed  by  this  respondent, 
to  be  bound  by  said  judgment,  the  object  of  the  Bank  and  Su- 
ter being,  as  understood  by  the  respondent,  to  secure  not  only 
the  money  then  advanced,  but  the  debt  previously  due  the 
bank." 

It,  therefore,  clearly  appears,  that  the  transfer  of  the  stalls  was 
taken  as  security  for  a  debt,  and  whether  to  secure  the  specific 
sum  of  three  thousand  dollars  loaned  Suter  at  that  time,  or  the 
entire  debt  of  nine  thousand  dollars,  for  which  judgment  was 
confessed,  still  the  intention  of  the  parties  was  merely  to  give 
and  to  take,  a  security  for  a  debt,  and,  consequently,  the  trans- 
action must  be  treated  accordingly — that  is,  the  transfer  must 
be  regarded  as  a  mortgage  or  pledge,  to  secure  the  payment  of 
a  debt,  and  not  as  passing  the  absolute  title  to  the  creditor. 


540  HIGH  COURT  OF  CHANCERY. 

The  position  that  this  was  the  intention  of  the  parties,  de- 
rives powerful  support  from  the  fact,  that  the  sum  of  three 
thousand  dollars,  advanced  at  the  time  of  the  transfer,  was  in- 
cluded in  the  judgment  confessed  by  Suter.  Indeed,  I  do  not 
understand  it  to  be  contended  by  the  counsel  of  the  bank,  that 
these  three  stalls  were  purchased  by  it,  for  the  sum  of  three 
thousand  dollars,  because,  if  so,  no  conceivable  reason  could  be 
assigned,  for  including  that  sum  in  the  judgment.  His  argu- 
ment is,  that  the  transfer  was  absolute,  and  that  the  bank  was  to 
be  at  liberty  to  sell  and  apply  the  proceeds  of  the  sales  to  the  ex- 
tinguishment, as  far  as  they  would  go,  of  the  entire  debt  of  nine 
thousand  dollars,  for  which  the  judgment  was  rendered.  If  that 
was  the  character  of  the  transaction,  that  is,  if  the  stalls  in  the 
hands  of  the  bank,  or  its  agent,  were  affected  with  a  trust,  to 
sell  and  apply  the  proceeds  to  the  payment  of  the  debt,  still,  I 
should  think,  that  in  the  eye  of  a  court  of  equity,  the  transfer 
would  be  regarded  as  a  mortgage,  being  a  mere  security  for 
the  debt,  and  not  an  indefeasible  transfer  of  the  title. 

My  opinion  then,  is,  that  this  transfer  of  these  stalls,  though 
absolute  in  terms,  must  be  treated  as  a  security  merely,  and  be 
subject  to  the  considerations  governing  such  transactions. 

And  this  conclusion  is  arrived  at  without  trenching  upon  the 
principle,  that  parol  evidence  in  the  absence  of  fraud,  or  mis- 
take, is  inadmissible  to  vary  or  contradict  the  clear  import  of  a 
written  instrument,  but  upon  the  confessions  and  statements  of 
the  answers  themselves,  which,  in  my  opinion,  prove  clearly 
that  a  security  merely  was  intended  to  be  taken,  and  if  so,  it 
follows,  that  however  absolute  the  form  of  the  instrument,  it 
will  be  dealt  with  as  a  mortgage. 

The  remaining  question  has  reference  to  the  right  of  the  in- 
solvent trustee  of  Suter  to  sell  this  property,  and  administer 
the  proceeds  of  the  sales  under  the  control  of  the  court,  by 
which  he  was  appointed,  and  this  question  depends  upon  the 
true  construction  of  the  5th  and  7th  sections  of  the  act  of  1805, 
chap.  110. 

It  is  conceded,  and  indeed  could  not  be  disputed,  since  the 
decision  of  the  case  of  Alexander  vs.  Ghiselin  et  al.,  5  Gill, 


BANK  OF  WESTMINSTER  VS.  VVHYTE.  541 

138,  that  if  the  transfer  of  this  property  is  to  be  regarded  as  a 
mortgage  or  pledge  for  the  security  of  a  debt,  that  it  would  be 
the  right  and  the  duty  of  the  insolvent  trustee  to  sell  it  and  pay 
off  the  liens  and  incumbrances  thereon,  the  opinion  of  the  Court 
of  Appeals  in  that  case  being  explicit  to  that  effect.  But  it  is 
urged,  that  the  transfer  here,  though  made  to  secure  a  debt,  is 
in  the  nature  of  a  trust,  and  that  the  insolvent  trustee  has  no 
authority  to  interfere  with  the  trustee  selected  by  the  conven- 
tion of  the  parties,  whose  right  it  is  to  proceed  in  the  discharge 
of  his  duty,  undisturbed  by  any  such  interference. 

It  appears  to  me,  however,  that,  assuming  the  transaction  to 
be  such  as  the  counsel  of  the  bank  has  characterized  it — that 
is,  that  the  property  in  question,  though  transferred  to  Mr. 
Fisher  absolutely,  was  nevertheless  affected  with,  and  to  be  re- 
garded as  subject  to,  a  trust  for  the  payment  of  the  money  due 
from  Suter  to  the  bank  ;  and  that  parol  evidence  is  admissible 
for  the  purpose  of  showing  the  trust,  still  it  seems  clearly  to 
come  within  the  scope  of  the  principles  settled  by  the  appellate 
court  in  the  case  referred  to. 

Looking  to  the  design  of  the  insolvent  laws,  as  expounded 
in  that  case,  which  was  to  secure  a  prompt,  single  and  harmo- 
nious administration  of  the  estate  of  the  insolvent,  which 
could  only  be  effected  by  bringing  all  the  parties  interested  be- 
fore one  and  the  same  tribunal ;  it  would  seem  to  be  essential 
that  no  one  should  be  permitted  to  participate  with  the  insolv- 
ent trustee  in  the  execution  of  the  trust,  by  which,  as  observed 
by  the  court  in  that  case,  "adverse  interests  might  be  created, 
delays  engendered,  if  not  ensured,  and  probably  different,  and 
possibly  conflicting,  tribunals  consulted." 

Considering  that  this  question  is,  in  effect,  settled  by  the  case 
in  which  these  remarks  were  made,  I  shall  pass  orders,  dissolv- 
ing the  injunction  issued  upon  the  bill  of  the  Bank  of  West- 
minster, and  continuing  that  which  issued  upon  the  bill  of  the 
insolvent  trustee. 

[No  appeal  was  taken  from  this  order.] 
VOL.  i—46 


542  HIGH   COURT  OF   CHANCERY. 


HORACE  ABBOTT  ET  AL.  ^ 

vs. 

THE  BALTIMORE   AND  \      JULY  TERM,  1850. 

RAPPAHANNOCK  STEAM  PACKET     j 
COMPANY  ET  AL.  j 

[PRIORITY  OF  SEAMEN'S  CLAIM  FOR  WAGES — LIABILITY  OF  OWNER  FOR  SUPPLIES — 
CONTRACTS  OF  CORPORATIONS.] 

THE  crew  of  a  steamboat,  plying  between  the  ports  of  adjoining  states,  upon 
navigable  tide  water,  have  a  right  to  proceed  for  wages  due  them,  by  libel 
in  the  District  Court  of  the  United  States,  and  have  a  lien  on  the  vessel,  her 
tackle  and  furniture,  for  such  wages. 

This  right  to  libel  the  vessel  in  the  admiralty  courts  for  wages,  extends  to 
every  officer  and  man  who  assists  in  navigating  her,  except  the  captain. 

The  officers  and  seamen  have  a  triple  security  for  their  wages,  they  may  have 
recourse  to  the  vessel,  the  owner,  and  the  master. 

The  seamen's  claim  for  wages,  follows  the  ship  and  its  proceeds,  in  whose 
hands  soever  they  may  come,  is  preferred  to  all  other  demands,  and  consti- 
tutes a  sacred  lien,  which  continues  as  long  as  a  single  plank  of  the  ship  re- 
mains, and  extends  to  the  whole  amount  of  compensation  due  the  seamen. 

The  owner  is  liable  for  the  necessary  supplies  for  the  vessel  furnished  by  order 
of  the  master,  and  if  he  seeks  to  escape  such  liability,  he  must  show ,  by  satis- 
factory proof,  that  the  credit  was  given  to  others. 

If  the  owner  can  make  out,  by  evidence,  that  the  credit  was  given  to  the  master 
alone  for  such  supplies  ;  If  it  appears,  that  there  was  a  special  promise  taken 
from  him  and  relied  upon,  the  owner  will  not  be  liable. 

Corporations  can  make  no  contracts  which  are  not  necessary,  either  directly 
or  indirectly,  to  effect  the  objects  of  their  creation,  and  a  corporation  itself, 
may,  in  an  action  brought  against  it  upon  such  contract,  deny  its  power  to 
enter  into  it. 

The  act  of  1829,  ch.  42,  incorporated  the  defendant,  "for  the  purpose  of  estab- 
lishing and  conducting  a  line  of  steamboats  and  stages,  orcarriages,  between 
Baltimore  and  Fredericksburg,  and  the  several  ports  and  places  on  the  Rap- 
pahannock,  and  on  the  rivers  and  waters  of  the  Chesapeake  bay,  for  the  con- 
veyance of  passengers,  and  transportation  of  merchandise  and  other  arti- 
cles." The  company  entered  into  an  obligation  to  aid  in  an  improvement, 
the  purpose  of  which,  was  to  open  the  Rappahannock  river,  and  render  it 
navigable  to  the  basin,  in,  or  near  Fredericksburg.  HELD — 

That  the  proposed  improvement,  being  above  the  Virginia  terminus  of  the  route 
between  which,  and  Baltimore,  the  boats  were  to  run,  for  that  reason  was 
not  within  the  authority  conferred  upon  the  company  by  its  charter.  And 
even  if  it  had  been  between  the  termini,  it  would  not  have  been  within  the 
powers  granted  by  the  act  of  incorporation. 

[In  this  case,  a  bill  was  filed  by  the  complainants  on  the  13th 
of  October,  1846,  alleging  the  indebtedness  of  the  Steam  Packet 


ABBOTT  VS.  BALT.  AND  RAPP.  STEAM  PACKET  CO.    543 

Company  to  various  individuals  in  large  sums  of  money,  and 
its  inability  to  pay  such  debts,  and  praying  that  a  receiver  might 
be  appointed  to  take  charge  of  and  sell  the  vessels  and  other 
property  of  the  company,  and  for  an  injunction  to  restrain  the 
defendants  (trustees  to  whom  the  vessels  of  the  company  had 
been  assigned)  from  navigating  said  vessels,  and  for  further 
relief. 

An  injunction  was  granted  on  the  same  day,  and  a  receiver 
appointed,  unless  cause  to  the  contrary  should  be  shown  by  the 
10th  of  the  ensuing  month. 

No  sufficient  cause  to  the  contrary  having  been  shown,  an 
order  appointing  a  receiver  was  passed  on  the  1st  of  January, 
1847,  and  the  receiver  so  appointed,  having  qualified  by  giv- 
ing bond  with  approved  surety,  was  authorized  and  directed, 
by  an  order  passed  on  the  4th  of  the  same  month,  by  consent 
of  parties,  to  make  sale  of  the  property  which  might  come  into 
his  hands. 

The  sale  was  made  on  the  2nd  of  February,  1847,  and  finally 
ratified  on  the  17th  of  March  following ;  and  the  Auditor  hav- 
ing stated  and  reported  an  account  between  the  property  thus 
sold  and  the  receive*,  numerous  exceptions  were  filed  thereto 
by  the  parties.  The  principal  questions  involved,  are  upon  the 
claim  of  the  seamen  for  a  prior  lien  upon  the  vessel  for  wages, 
upon  the  claims  of  creditors  who  furnished  supplies  for  the  ves- 
sel, upon  certain  claims  founded  upon  the  drafts  of  the  captain 
on  the  company,  and  upon  a  claim  of  Alexander  J.  Marshall, 
upon  a  contract  entered  into  by  him  with  the  president  of  said 
company. 

These  exceptions  being  argued,  the  Chancellor,  in  giving 
directions  for  a  further  account,  says:] 

THE  CHANCELLOR : 

Among  the  numerous  creditors  who  have  come  in  upon  this 
fund  are  the  seamen  who  claim  the  wages  due  them  for  navi- 
gating and  services  on  board  the  vessel  for  the  year  1846,  and 
in  their  behalf  it  is  insisted,  that  they  are  entitled  to  a  prefer- 
ence over  the  other  creditors,  upon  the  ground  that  the  wages 


544  HIGH  COURT  OF  CHANCERY. 

of  the  seamen  constitute  a  lien  upon  the  vessel,  or  the  proceeds 
derived  from  the  sale  of  it.  This  claim  will  be  first  considered. 
This  Steam  Packet  Company  was  incorporated  by  the  act  of 
1829,  chapter  42,  for  the  purpose  of  establishing  and  conduct- 
ing a  line  or  lines  of  steamboats,  vessels,  and  stages  or  other 
carriages,  between  Baltimore  and  Fredericksburg,  and  the 
several  ports  and  places  on  the  Rappahannock,  and  the  other 
rivers  and  waters  of  the  Chesapeake  bay,  for  the  conveyance 
of  passengers,  and  transportation  of  merchandise  and  other 
articles. 

The  purpose,  then,  for  which  the  company  was  incorporated, 
was  to  open  a  communication  by  water  between  the  ports  of 
Maryland  and  Virginia.  The  vessels  were  to  ply  between  the 
two  states  in  the  waters  of  the  Chesapeake  bay  and  the  Rap- 
pahannock, and  there  would  seem  to  be  no  doubt,  indeed  it  is 
not  understood  to  be  questioned,  that  the  seamen  have  a  right, 
for  wages  due  them  in  such  service,  to  proceed  by  libel  in  the 
District  Court  of  the  United  States,  and  that,  as  a  general  rule, 
they  have  a  lien  on  the  vessel,  her  tackle  and  furniture.  Smith 
vs.  the  Pelein,  Gilpin's  Rep.,  203  ;  Wilson  vs.  the  Ohio,  same 
book,  505. 

In  this  last  case  the  libel  was  for  wages  on  board  a  steam- 
boat plying  between  the  ports  of  adjoining  states,  on  a  navi- 
gable tide  river,  and  the  proceeding  was  sustained  ;  and  it  was 
also  decided,  that  the  title  to  sue  in  the  admiralty  for  wages, 
extended  to  the  pilot,  the  deck  hands,  the  engineer  and  the  fire- 
men. 

In  short,  this  right  to  libel  the  vessel  in  the  admiralty  courts 
for  wages,  extends  to  every  officer  and  man  who  assists  in  navi- 
gating her  except  the  captain.  Ross  vs.  Walker,  2  Wilson,  264. 
The  authorities  are  abundant  to  show,  that  the  officers  and 
seamen  (except  the  captain)  have  a  triple  security  for  their 
wages — they  may  have  recourse  to  the  vessel,  the  owner,  and 
the  master.  Bronde,  et  al.  vs.  Haven,  Gilpin's  Rep.,  592,  595  ; 
3  Kent's  Com.,  196, 197. 

Chancellor  Kent  speaks  of  the  seamen's  claims  for  wages  as 
entitled  to  the  favor  and  protection  of  the  law — that  this  claim 


ABBOTT  VS.  BALT.  AND  RAPP.  STEAM  PACKET  CO.   545 

follows  the  ship  and  its  proceeds,  in  whose  hands  soever  they 
may  come,  by  title  or  purchase — that  it  is  preferred  to  all  other 
demands,  and  constitutes  a  sacred  lien,  which  continues  as  long 
as  a  single  plank  of  the  ship  remains,  and  extends  to  the  whole 
amount  of  the  compensation  due  the  seamen. 

The  claims,  therefore,  of  the  seamen,  in  this  case,  are  certainly 
entitled  to  be  paid  out  of  the  proceeds  of  the  vessel,  her  tackle 
and  furniture,  before  all  others,  unless  they  have  in  some  way 
deprived  themselves  of  the  priority  of  payment,  to  which  they 
were  so  clearly  entitled. 

Authorities  have  been  cited  to  show  that  a  contract  between 
the  crew  and  the  captain,  that  the  latter  alone  should  be  liable 
for  their  wages,  would  be  disregarded,  as  unconscientious,  and 
that,  nothwithstanding  an  express  contract  to  that  effect,  the 
seamen  might  resort  to  either  the  vessel  or  owners  for  payment. 
The  Chancellor  does  not  think  it  necessary  to  decide  this  ques- 
tion, for  conceding  that  an  express  contract  with  the  captain 
that  he,  and  he  alone,  should  be  liable  to  the  crew  for  their 
wages,  would  preclude  the  latter  from  having  recourse  to  the 
vessel  and  owners,  he  can  see  nothing  in  the  evidence  in  this 
case,  which  would  restrict  the  crew  to  but  one  of  the  three  rem- 
edies which  the  law  clearly  gives  them,  in  the  absence  of  ex- 
press contract. 

It  is  not  understood  to  be  contended,  that  exemption  can  be 
claimed  for  the  vessel  and  owners  from  the  demand  of  the  sea- 
men for  wages,  unless  a  contract  to  that  effect  can  be  establish- 
ed, but  it  is  contended  by  those  who  resist  the  claim  of  the 
seamen  in  this  case,  that  such  a  contract,  like  any  other  fact, 
may  be  proved  by  circumstances,  and  that  the  circumstances  of 
this  case  are  sufficient  for  that  purpose. 

There  is  not  certainly  in  this  case  any  direct  evidence  of  a 
contract  that  the  hands  employed  in  the  vessel  would  look  ex- 
clusively to  the  captain  for  payment,  and  I  have  not  been  able 
in  the  evidence  to  find  circumstances  sufficiently  strong  to  induce 
me  to  infer  one.  It  is  shown,  to  be  sure,  that  two  of  the  hands 
knew  of  the  engagement  between  the  captain  and  the  owners, 
that  the  former  would  pay  the  crew,  and  furnish  provisions  for 
46* 


546  HI(>H  COURT  OF  CHANCERY. 

the  table,  upon  certain  terms  contained  in  the  contract  between 
him  and  them  ;  but  it  does  not  appear  when  they  acquired  this 
knowledge,  or  that  they  were  willing  or  agreed,  that  their  right 
to  look  to  the  vessel  and  owners  should  be  destroyed  by  it. 
With  regard  to  the  rest  of  the  crew,  there  is  not,  in  my  opinion, 
any  competent  evidence  that  they  had  any  knowledge  whatever 
of  this  contract  between  the  owners  and  the  captain. 

It  seems  to  me  impossible  to  say,  looking  to  the  scrupulous 
suspicion  with  which  contracts  and  stipulations  with  seamen 
are  watched  by  the  courts,  for  the  purpose  of  affording  them 
that  protection  which  from  their  improvident  habits  they  but  too 
frequently  require,  that  they  should,  upon  such  proof,  be  con- 
strued out  of  the  most  important  security  for  their  hard  earned 
wages.  Jlbbott,  722,  note  11,  and"745,  note  11 ;  Nickerson  vs. 
Schooner  Monsoon,  5  Law  Reporter,  416. 

My  opinion  then  is,  that  the  seamen  in  this  case  have  a  lien 
on  the  proceeds  of  the  vessel,  and  are  entitled  to  a  preference 
over  the  other  creditors. 

This  disposes  of  claims  from  No.  11  to  25,  inclusive,  and  of 
No.  35,  all  of  which  are  for  seamen's  wages. 

Another  class  of  creditors  who  have  come  in  for  payment 
out  of  this  fund,  are  those  who  have  furnished  supplies  for  the 
vessel,  but  they  claim  only  to  be  general  creditors,  the  supplies 
having  been  furnished  in  the  home  port. 

That  for  the  necessary  supplies  for  a  vessel,  furnished  by  or- 
der of  the  master,  the  owner  is  liable,  seems  to  be  settled,  and 
when  he  seeks  to  escape  such  liability,  he  must  make  out,  by 
satisfactory  proofs,  the  facts  upon  which  he  claims  the  exemp- 
tion. If  he  insists  that  he  is  not  liable,  he  must  show  that  the 
credit  was  given  to  others  ;  as,  by  similar  proof,  the  master 
also  may  avoid  a  responsibility  which  generally  rests  upon  him 
as  well  as  upon  the  owner.  Jlbbott,  168,  169 ;  3  Kent's  Com., 
133,  note  b. 

If  the  owner  can  make  out,  by  evidence,  that  the  credit  was 
given  to  the  master  alone,  for  such  supplies,  if  it  appears  there 
was  a  special  promise  taken  from  him  and  relied  upon,  the 
owner  would  not  be  liable  ;  and  on  the  other  hand,  the  master 


ABBOTT  VS.  BALT.  AND  RAPP.  STEAM  PACKET  CO.   547 

would  not  be  liable,  if  a  like  promise  of  the  owner  was  taken 
and  relied  upon.  Abbott,  168,  note  11 ;  5  Law  Reporter,  116. 

Unless  evidence  of  this  description  can  be  furnished,  it  is 
believed  to  be  very  well  established  that  the  owners  are  liable 
for  necessary  supplies  furnished  the  ship  by  order  of  the  master. 

The  question,  then,  in  this  case,  is,  have  these  owners  suc- 
ceeded in  establishing,  by  evidence,  that  the  persons  who  fur- 
nished supplies  for  this  vessel,  did  so  upon  the  credit  of  the 
master  alone  ?  Looking  to  all  the  proof  upon  this  point,  and 
giving  it  a  fair  consideration,  I  cannot  agree  with  the  counsel, 
that  credit  for  these  supplies  was  given  exclusively  to  the  mas- 
ter, without  which,  the  owner  was  unquestionably  liable.  In 
fact,  with  regard  to  the  claims  numbered  9  and  10,  the  idea  of 
the  exclusive  liability  of  the  captain  could  not  have  been  en- 
tertained by  these  owners,  as  it  appears  by  the  records,  that 
they  confessed  decrees  for  those  claims  at  March  term  last,  in 
the  United  States  District  Court  for  the  Maryland  District. 

It  would  be  a  consumption  of  time  and  space  for  which 
there  would  be  no  compensating  advantage,  to  enter  upon  an 
examination  of  the  proof,  upon  which  my  conclusions  upon 
this  question  of  fact  are  formed,  and  I  therefore  content  myself 
with  saying,  that  I  am  not  satisfied  that  the  parties  who  fur- 
nished these  supplies,  contracted  to  look  exclusively  to  the 
captain  for  their  money,  and,  therefore,  my  opinion  is,  that 
such  of  the  creditors  of  this  class  as  may  succeed  in  proving 
their  claims,  will  be  entitled  to  come  in  upon  the  fund  as  gen- 
eral creditors,  after  the  satisfaction  of  the  liens  and  preferences 
already  referred  to. 

In  addition  to  the  claims  of  the  seamen  and  of  the  parties 
who  furnished  supplies  for  the  vessel,  certain  claims  have  been 
filed,  founded  upon  the  drafts  of  the  captain  on  the  company. 
These  drafts  are  dated  on  the  7th  of  December,  1846,  and  the 
vessel  ceased  to  run  on  the  12th  day  of  the  same  month  ;  and 
on  the  same  day  a  resolution  was  passed  by  the  directors  of 
the  company,  directing  these  drafts  to  be  charged  to  the  ac- 
count of  the  captain,  and  credited  to  the  parties  entitled  to  re- 
ceive the  same,  and  in  case  the  sum  due  the  captain  from  the 


548  HIGH  COURT  OF  CHANCERY. 

company,  should  be   insufficient  to   pay  them,  that  then  they 
should  be  paid  pro  rata. 

The  parties  to  whom  these  drafts  were  given  were  directors 
and  officers  of  the  company,  who  must  have  known  at  the  time 
of  its  embarrassed  condition,  and  that  the  crew  and  provision 
men  had  not  been  paid.  It  appears  also  by  the  evidence  of 
the  captain,  that  he  gave  them  with  reluctance,  if  not  under 
absolute  coercion,  and  that  they  were  given  by  him  for  money 
borrowed  from  the  parties  in  whose  favor  they  were  drawn. 
Under  the  circumstances  attending  the  drawing  and  direction 
for  the  payment  of  these  drafts,  I  do  not  think  they  are  entitled 
to  any  very  great  degree  of  favor,  but  yet  it  seems  to  me,  they 
should  not  be  wholly  excluded  from  all  participation  in  the 
fund  out  of  which  they  were  to  be  paid.  It  appears  that  there 
was  at  that  time  due  the  captain  from  the  company,  about 
$2400,  which  accrued  in  the  year  1846,  for  his  pay  and  com- 
pensation in  that  year.  The  contract  between  him  and  the  com- 
pany, as  disclosed  by  the  proof,  was,  that  for  a  fixed  compen- 
sation the  captain  was  to  find  the  vessel  in  hands  and  provi- 
sions, and  to  pay  generally  the  expense  of  navigating  her,  that 
the  contract  was  duly  performed  by  both  parties  until  the  year 
1846,  when  the  company  failed  to  comply  with  its  engagement 
to  the  captain,  and  the  latter  was  consequently  unable  to  pay 
the  crew,  &c. 

I  have  already  expressed  the  opinion,  that  the  crew  have  a 
lien  on  the  proceeds  of  the  vessel,  and  that  those  who  fur- 
nished the  supplies,  though  they  have  no  lien,  are  to  be  treated 
as  creditors  at  large,  and  entitled  to  such  dividend  as  may  be 
fairly  apportioned  to  them. 

As,  however,  according  to  the  contract  between  the  company 
and  the  master,  the  latter  was  to  pay  the  hands  and  the  pro- 
vision men,  and  as  the  sum  due  the  captain  from  the  company 
is  the  primary  fund  for  that  purpose,  my  opinion  further  is,  that 
whatever  fund  may  have  been  found  to  be  due  from  the  com- 
pany to  the  captain  when  the  drafts  in  question  were  given, 
should  be  apportioned  pro  rata  between  the  crew,  the  provision 
men,  and  the  holders  of  the  drafts  referred  to — that  for  what- 


ABBOTT  VS.  BALT.  AND  RAPP.  STEAM  PACKET  CO.  549 

ever  balances  may  remain  due  to  the  crew,  after  crediting  their 
proportion  of  the  amount  due  the  captain  as  aforesaid,  they 
shall  be  paid  out  of  the  proceeds  of  the  sales  made  by  the  re- 
ceiver, as  preferred  creditors — that  the  parties  who  furnished 
supplies  for  the  vessel  shall  be  entitled  to  receive  a  distributive 
share  of  the  balance  of  those  proceeds,  for  the  sums  which 
may  remain  due  them,  after  the  application  to  their  payment  of 
their  proportion  of  the  amount  due  from  the  company  to  the 
captain  ;  but  that  the  holders  of  the  drafts  given  by  the  captain 
on  the  7th  of  December,  1846,  shall  receive  nothing  but  the 
dividend  of  the  amount  due  the  captain,  distributed  as  before 
explained,  as  I  think  all  they  can  fairly  claim  is  to  participate 
in  that  fund. 

The  only  remaining  claim  which  it  is  necessary  to  notice,  is 
that  presented  by  Alexander  J.  Marshall,  numbered  53  in  the 
statement  of  claims  by  the  Auditor.  Without  stopping  to  in- 
quire whether  the  obligation  upon  which  this  claim  is  founded 
is  the  obligation  of  the  company,  or  of  the  gentleman  who 
signed  the  same  as  president,  or  whether  the  terms  upon  which 
it  was  given  have  been  complied  with  or  not,  I  am  of  opinion, 
that  regarding  this  obligation  as  properly  executed  to  bind  the 
company,  it  is  still  not  a  valid  instrument  as  against  them,  for 
the  want  of  authority  to  enter  into  such  an  engagement. 

It  has  been  already  stated,  that  this  company  was  incorpo- 
rated "for  the  purpose  of  establishing  and  conducting  a  line 
of  steamboats  and  stages  or  carriages  between  Baltimore  and 
Fredericksburg,  and  the  several  ports  and  places  on  the  Rap- 
pahannock,  and  on  the  rivers  and  waters  of  the  Chesapeake 
bay,  for  the  conveyance  of  passengers  and  transportation  of 
merchandise  and  other  articles." 

The  object  of  the  charter  was  to  authorize  the  transportation 
of  passengers  and  merchandise  between  Baltimore  and  Freder- 
icksburg ;  but  the  purpose  contemplated  by  the  improvement, 
in  aid  of  which  the  obligation  under  consideration  was  given, 
as  declared  upon  the  face  of  the  instrument,  was  to  open  the 
Rappahannock  river,  and  render  it  navigable,  &c.,  to  the  basin 
in  or  near  Fredericksburg.  The  improvement  proposed  to  be 


550  HIGH  COURT  OF  CHANCERY 

made  was  above  the  Virginia  terminus  of  the  route,  between 
which  terminus  and  Baltimore,  the  boats  were  to  run,  and  was 
not,  therefore,  for  that  reason,  within  ffie  authority  conferred 
upon  the  company  by  their  charter ;  but  even  if  the  improve- 
ment had  been  between  the  termini,  I  do  not  think  it  would 
have  been  within  the  powers  granted  by  the  act  of  incorpora- 
tion. 

The  Court  of  Appeals  have  decided,  that  corporations  are 
not  only  incapable  of  making  contracts  which  are  forbidden  by 
their  charters,  but  in  general  they  can  make  none  which  are 
not  necessary,  either  directly  or  indirectly,  to  effect  the  objects 
of  their  creation.  The  Penn.  Del.  and  Md.  Steam  Navigation 
Company  vs.  Dandridge,  8  Gill  fy  Johns.,  248  ;  and  that  the 
corporation  itself  may,  in  an  action  brought  against  it  upon 
such  contract,  deny  its  power  to  enter  into  it. 

This  case,  I  think,  is  decisive  of  the  question,  and  the  claim 
therefore  founded  upon  the  contract  referred  to;  must  be  disal- 
lowed and  rejected. 

[No  appeal  was  taken  from  this  order.] 


DEX 


ABATEMENT  OF  SUITS. 

See  CONSTRUCTION  OF  STATUTES,  2. 
ABSOLUTE  CONVEYANCE  DECLARED  A  MORTGAGE. 

See  MORTGAGE.  < 

ACCOUNT  STATED. 

See  SURCHARGING  AND  FALSIFYING  ACCOUNTS. 
ACTS  OF  ASSEMBLY. 

1704,  ch.  69.  Relating  to  usury,  450. 

1785,  ch.  77,  sec.  11.     Authorizing  the  Court  of  Chancery  to  record  deed 
in  certain  cases,  528. 

1793,  ch.  43.  Landlord  and  Tenant,  390. 

1794,  ch.  54.  Directing  proceedings  on  Judgments,  462. 

1795,  oh.  24.  "  "  463. 
1798,  ch.  84.                  Production  of  Books  and  Papers,  201. 
1798,  ch.  101,  sub.  ch.  13,  sec.  5,  300. 

1812,  ch.  77.     Insolvent  System,  74. 
1816,  ch.  221.  "  "       74. 

1818,  ch.  193,  sec.  10.  Extending  Dower,  39. 

1820,  ch.  191,  sees.  8,  10,  12.   To  direct  Descents,  226. 

1821,  ch.  201.  Charter  of  Savage  Manufacturing  Co.,  307. 

1822,  ch.  162.  Abolishing  Estates  in  Joint  Tenancy,  292. 

1824,  ch.  79,  sees.  15, 19.     Charter  of  Chesapeake  and  Ohio  Canal  Co.,  253. 

1825,  ch  119.  Estates  for  Life,  293. 

182f>.  ch.  123,  sec.  15.          Incorporating    Annapolis   and    Elkridgc    Rail 

Road  Company,  109. 
1^2'J.  ch.  42.  Incorporating    Baltimore   and    Rappahannock 

Steam  Packet  Company,  542. 
Ib31.  ch.  281,  sees.  3,  4,  5.  Slaves  Manumitted  not  to  remain  in  the  State, 

357. 
1832,  ch.  230.  Court  of  Appeals  to  award  damages  in  cases 

of  appeal  for  delay,  330. 

1834,  ch.  293.  Supplement  to  Insolvent  Laws,  175. 

1835,  ch.  380,  sec.  8.     To  take  Testimony  in  cases  of  Injunctions,  on  mo- 

tion to  dissolve,  103. 

1838,  ch.  205.  Mechanics'  Lien  Law,  189. 

1831,  ch.  168.    Authorizing  Annapolis  and  Elkridge  Rail  Road  Co.  to  is- 
sue Bonds,  111. 


552  INDEX. 

ACTS  OF  ASSEMBLY—  Continued. 

1842,  ch.  229.    Regulating  Chancery  Practice  in  certain  cases,  343. 

1845,  ch.  176,  sec.  4.     Mechanics'  Lien,  18W 

1845,  ch.  352.  Limiting  Defences  ft  Usury,  66, 450. 

1845,  ch.  367.  Right  of  Appeal,  324. 

ADMISSIONS. 

See  PLEADING. 

PRACTICE  IN  CHANCERY,  31. 
AGENT. 

1.  The  authority  of  an  agent  to  make  an  agreement  for  his  principal  need 

not  be  in  writing.     Small  vs.  Owings,  363. 

2.  A  vote  or  resolution  of  a  Corporation,  appointing  an  agent,  need  not  be 

entered  on  the  minutes,  but  may  be  inferred  from  the  permission  or 
acceptance  of  his  services.    Elysville  Manf.  Co.  vs.  Okisko  Co.,  392. 

3.  The  president  of  one  corporation  subscribed  for  stock  in  another  corpo- 

ration.    The  certificate  for  the  stock  was  received  by  the  agent  of 

the  former,  and  retained  by  it,  and  the  stock  on  two  occasions  was 

voted  by  an  officer  or  member  of  the  former  corporation.    HELD — 

That  from  these  facts  the  authority  to  the  president  to  make  the 

subscription  might  be  presumed.    Ib. 
AMENDMENT. 

See  PRACTICE  IN  CHANCERY,  5. 
ANSWER. 

See  EXCEPTIONS  TO  ANSWER,  1  to  3. 

EVIDENCE,  1,  2. 

ANSWER  FOUNDED  ON  HEARSAY. 
See  INJUNCTION,  8,  9. 

PRACTICE  IN  CHANCERY,  11. 
APPEAL. 

1.  An  appeal  and  a  bond  to  prosecute  the  appeal  will  not,  under  the  act  of 

1845,  ch.  367,  independently  of  the  direction  of  the  court,  delay  the 
execution  of  the  order  appealed  from.  Williams  vs.  Savage  Manufac- 
turing Co.,  307. 

2.  Whether  such  direction  shall  or  shall  not  be  given,  is  referred  by  the 

legislature  to  the  sound  discretion  of  the  court  upon  a  view  of  all  the 
circumstances  of  the  case.  16. 

3.  An  appeal  will  lie  from  every  decision  which  settles  a  question  of  right 

between  the  parties,  no  matter  whether  the  decision  was  adverse  or 
by  consent  or  default.  Chesapeake  Bank  vs.  McLellan,  328. 

4.  The  right  to  appeal  for  the  mere  purpose  of  delay  seems  to  be  recog- 

nized by  the  act  of  1832,  ch.  230,  which  directs  the  appellate  court  to 
award  damages  in  such  cases,  over  and  above  the  interest  allowed  by 
law  on  the  judgment.  Ib. 

5.  Whether  an  appeal  will  lie  or  not  in  any  given  case,  is  for  the  appellate 

court,  and  not  for  this  court,  to  decide ;  it  being  a  question  relating  to 
the  jurisdiction  of  the  superior  tribunal,  and,  therefore,  for  it  alone  to 
determine.     Ib. 
See  PRACTICE  INT  CHANCERY,  42. 


INDEX.  553 

APPEARANCE. 

See  PRACTICE  IN  CHANCERY,  28. 
APPLICATION  OF  PAYMENTS. 

1.  The  general  rule  on  the  subject  of  appropriation  of  payments,  gives  to 

the  debtor,  in  the  first  place,  the  right  to  make  the  application,  and 
then  upon  his  omitting  so  to  do,  to  the  creditor.  McTavish  vs.  Car- 
roll, 160. 

2.  If  a  party  is  indebted  on  mortgage  and  simple  contract,  and  making  a 

payment,  neglects  to  apply  it,  the  law  will  apply  it  to  the  mortgage  or 
bond,  as  most  beneficial  to  the  debtor  ;  and  such  is  the  undoubted  rule 
where  no  particular  application  is  made  by  either  party.  76. 

3.  Payments  made  generally  are  applied  in  the  extinguishment  of  debts 

bearing  interest  where  there  are  others  due  the  same  creditor,  not  car- 
rying interest.  Ib. 

4.  If  a  party  is  indebted  on  several  accounts  and  makes  a  payment,  he 

may  apply  it  to  either,  if  he  does  not,  the  creditor  may  do  so,  and  if 
neither  does,  the  law  will  appropriate  it  according  to  the  justice  of 
the  case.     76. 
ASSIGNMENT. 

1.  By  the  terms  of  the  assignment  of  a  life  insurance  policy,  the  assignee 

was  to  receive  the  proceeds,  and  if  other  securities  held  by  him  were 
insufficient  for  that  purpose,  to  apply  the  same  to  the  satisfaction  of  his 
claims  against  the  assignor,  and  to  pay  over  the  residue,  if  any,  to  the 
wife  of  the  latter.  HELD — 

That  this  was  such  a  consummate  transfer  and  delivery  of  the  policy 
as  to  take  from  the  assignor  the  legal  power  and  dominion  over 
it,  and  authorized  the  insurance  company  to  pay  the  money  to  the 
assignee,  without  the  interposition  of  the  administrator  of  the  as- 
signor, and  that  the  title  of  the  wife  to  the  residue,  after  paying 
the  claim  of  the  assignee,  was  good.  Harrison  vs.  McConkcy,  34. 

2.  An  obligor  who  has  paid  the  judgment  of  the  creditor,  and  taken  an  as- 

signment thereof  to  himself,  may  use  such  judgment  for  his  indemnity, 
so  far  as  it  clearly  and  certainly  appears  that  his  co-debtor  ought  to 
contribute.  Wheller's  Estate,  80. 

3.  Whoever  may  be  the  holder  of  the  debt  intended  to  be  secured  by  the 

mortgage,  will  be  considered  in  equity  as  the  owner  of  the  mortgage 
itself.  Clark  vs.  Levering,  178. 

4.  The  debt  and  the  mortgage  are  so  inseparably  united,  the  one  being  in 

truth  appurtenant  to  the  other,  that  a  separate  and  independent  aliena- 
tion of  them  cannot  be  made.  76.  See  VENDOR'S  LIEN. 

ASSIGNOR  AND  ASSIGNEE.     See  ASSIGNMENT. 

ATTORNEY. 

1.  An  attorney,  either  in  law  or  in  fact,  would  not  have  the  power  to  bind 

his  principal  by  an  agreement  to  surrender  his  lien  upon  land,  and 
look  exclusively  to  the  trustees  appointed  by  a  deed  for  the  sale  there- 
of, without  an  express  authority  for  that  purpose.  Doub  vs.  Barnes,  127. 

2.  A  bill  filed  by  a  corporation  need  not  be  under  its  corporate  seal.     That 

it  is  the  bill  of  the  corporation,  is  sufficiently  vouched  by  the  signature 
VOL.  I — 47 


554  INDEX. 

ATTORNEY—  Continued. 

of  the  solicitor,  whose  authority  to  file  it  need   not  be  exhibited. 
Georges  Creek  Coal  and  Iron  Company  vs.  Detmold,  372.     See  COMMIS- 
SIONS, 3. 
AUDITOR. 

See  PRACTICE  IN  CHANCERY,  23. 
BANKS. 

See  LIABILITY  OF  CORPORATIONS  ON  TRANSFERS  OF  THEIR  STOCK. 
BILL  AND  ANSWER. 

See  PRACTICE  IN  CHANCERY,  2,  4. 
BILL  OF  REVIEW. 

See  PRACTICE  IN  CHANCERY,  41. 
BILL  OF  REVIVOR. 

See  DECREE  DORMANT  FROM  LAPSE  OF  TIME,  2. 
BILL  OF  RIGHTS. 

See  CONSTITUTIONAL  LAW,  8,  9. 
CERTAINTY. 

See  PART  PERFORMANCE,  4,  6  to  8. 

SPECIFIC  PERFORMANCE. 
CHANCERY  PRACTICE. 

See  PRACTICE  IN  CHANCERY. 
CHATTEL  INTEREST. 

See  LEASE,  1. 

DOWER,  1. 
CHILDREN. 

See  POSTHUMOUS  CHILDREN. 
CIRCUITY  OF  ACTION. 

See  PRACTICE  IN  CHANCERY,  36. 

CONTRIBUTION    AMONG    JOINT    OBLIGORS,  3. 

COMMISSIONS. 

1.  Upon  a  devise  of  real  and  personal  property  to  a  trustee,  in  trust,  to  ap- 

ply the  income  arising  therefrom  for  the  mutual  benefit  of  the  uncle 
and  aunt  of  the  testator  for  life,  and  after  the  death  of  the  uncle  to  the 
mutual  benefit  of  the  aunt  and  her  children,  and  the  testator  having 
said  that  the  trustee  whom  he  also  appointed  his  executor,  shall  have 
"ten  per  cent,  on  the  whole  amount  of  property  which  may  come  into 
his  hands."  HELD — 

That  he  was  entitled  to  this  per  centage  on  the  whole  amount  of 
property,  and  not  on  the  income  only,  irrespective  of  the  sum 
which  may  have  been  allowed  him  by  the  Orphans'  Court  as  exec- 
utor, and  in  this  respect  the  two  offices  are  to  be  regarded  as  dis- 
tinct as  if  filled  by  two  different  persons.  Mitchell  vs.  Holmes,  287. 

2.  A  trustee  may  waive  his  claim  to  commissions  where  that  claim  exists. 

Barry  vs.  Barry,  20. 

3.  Where  the  trustee,  by  the  terms  of  the  deed  creating  the  trust,  was  en- 

titled to  an  allowance  for  costs  and  expenses  attending  its  execution, 
such  allowances,  should  the  nature  of  the  trust  and  the  circumstances 
of  the  case  require  it,  will  embrace,  even  without  an  express  provision, 
the  expense  of  employing  an  attorney.  Green  vs.  Putney,  262. 


INDEX.  555 

COMMISSIONS— Continued. 

4.  When  several  sales  are  made  at  different  times,  the  commissions  of  the 
trustee  should  be  calculated  upon  each  sale  separately,  and  the  sales 
are  not  to  be  treated  as  if  made  at  one  time.     Goodburn  and  Wife  vs. 
Stephens,  420. 
COMMISSIONERS  TO  MAKE  PARTITION. 

See  PARTITION. 
CONCURRENT  JURISDICTION. 

1.  When  two  courts  have  concurrent  jurisdiction  over  the  same  subject 

matter,  the  court  in  which  the  suit  is  first  commenced  is  entitled  to  re- 
tain it.  This  rule  is  vital  to  the  harmonious  movement  of  the  courts, 
and  any  other  would  unavoidably  lead  to  perpetual  collisions  and  be 
productive  of  the  most  calamitous  results.  Brooks  vs.  Delaplaine,  351. 

2.  The  powers  of  the  County  Courts,  within  the  boundaries  assigned  them 

are  equal  in  every  respect  to  the  powers  of  the  Court  of  Chancery.  Ib. 

3.  The  jurisdiction  of  courts  of  equity  in  cases  of  dower,  is  concurrent 

with  that  of  courts  of  law,  and  if  the  legal  title  to  dower  be  admitted 
or  settled,  equity  will  proceed  to  the  assignment  of  the  dower,  and 
will  also  compensate  the  widow  in  damages  for  its  detention.     Kiddall 
vs.  Trimble,  143. 
See  JURISDICTION,  7,  15. 
CONSTITUTIONAL  LAW. 

1.  When  the  legislature  transcends  its  authority,  the  courts  of  justice  in 

the  discharge  of  their  duties  are  bound  to  pronounce  its  acts  void,  but 
this  high  power  of  the  judiciary  should  be  exercised  with  great  cau- 
tion, and  only  when  the  act  of  the  legislature  is  manifestly  beyond  the 
pale  of  its  authority.  Wilson  vs.  Hardesty,  66. 

2.  Retrospective  laws  and  laws  divesting  vested  rights,  unless  ex  post  facto, 

or  impairing  the  obligations  of  contracts,  do  not  fall  within  the  provi- 
sions of  the  constitution  of  the  United  States,  however  repugnant  they 
may  be  to  the  principles  of  sound  legislation.  Ib. 

3.  The  act  of  1845,  ch.  352,  as  affecting  pre-existing  contracts,  tainted  with 

usury,  is  neither  prohibited  by  the  constitution  or  bill  of  rights  of 
this  state,  nor  does  it  come  within  the  provision  contained  in  the  con- 
stitution of  the  United  States,  prohibiting  the  states  from  passing  ex 
post  facto  laws,  and  laws  impairing  the  obligation  of  contracts.  Ib. 

4.  Nothing  can  be  clearer  than  that  private  property  cannot  be  taken  for 

public  use,  without  making  just  compensation  to  the  owner.  Hamilton 
vs.  .Innapolis  and  Elkridge  Rail  Road  Company,  107. 

5.  The  right  of  eminent  domain  gives  to  legislative  authority  the  control  of 

private  property  for  public  uses,  subject  to  the  condition,  that  a  rea- 
sonable and  just  compensation  shall  be  made  to  the  owner.  76. 

6.  Any  attempt  to  exert  this  power  without  complying  with  the  condition, 

would  be  at  war  with  the  great  principles  of  natural  justice,  and  in 
direct  conflict  with  the  constitution  of  the  United  States.  76. 

7.  The  principle  that  the  right  of  eminent  domain  authorizes  the  govern- 

ment to  take  and  appropriate  private  property  for  public  uses,  without 
making  compensation  to  the  owner,  unless  there  is  some  provision  in 


556  INDEX. 

CONSTITUTIONAL  LAW—  Continued. 

the  constitution  restrictive  of  the  power,  cannot  be  maintained  in 
Maryland.  Harness  vs.  Chesapeake  and  Ohio  Canal  Company,  248. 

8.  Such  an  appropriation  by  law  without  compensation,  would  be  in  con- 

flict with  the  sixth  and  twenty-first  articles  of  the  bill  of  rights,  the 
latter  of  which  declares  "that  no  freeman  ought  to  be  taken  or  impri- 
soned, or  disseized  of  his  freehold,  liberties  or  privileges,  or  outlawed 
or  exiled,  or  in  any  manner  destroyed  or  deprived  of  his  life,  liberty 
or  property,  but  by  the  judgment  of  his  peers  or  the  laws  of  the 
land."  Ib. 

9.  To  say  that  the  legislature  has  such  power,  is  to  confer  upon  it  judicial 

powers,  and  to  confound  those  departments  of  government  which  the 
declaration  of  rights  says  shall  be  kept  forever  separate  and  distinct. 
16. 

10.  The  legislature  of  this  state  has  in  no  instance,  in  the  exercise  of  the 
right  of  eminent  domain,  omitted  to  provide  compensation  to  the  owner 
of  the  property  taken  for  public  uses,  and  such  provision  was  made  by 
the  15th  section  of  the  act  of  1824,  ch.  79,  passed  to  confirm  an  act  of 
the  legislature  of  Virginia,  incorporating  the  Chesapeake  and  Ohio 
Canal  Company.    The  15th  and  19th  sections  of  the  charter  of  this 
company  construed.     Ib. 

11.  State  insolvent  laws,  although  constitutional  in  their  action  upon  the 
rights  of  their  own  citizens,  are  unconstitutional  and  void  when  they  af- 
fect the  rights  of  citizens  of  other  states.     Potter  vs.  Kerr,  275. 

CONSTITUTION  OF  THE  UNITED  STATES. 

See  CONSTITUTIONAL  LAW,  2. 
CONSTRUCTION  OF  PARTNERSHIP  AGREEMENT. 

See  PARTNERSHIP  AND  PARTNERS,  3,  4. 
CONSTRUCTION  OF   STATUTES. 

1.  Remedial  laws  are  to  be  construed  liberally  to  advance  the  remedy  and 

obviate  the  mischief,  but  they  are  not  to  be  so  expanded  as  to  compre- 
hend cases  altogether  beyond  their  purview.  So  to  apply  and  enlarge 
the  law,  would  be  judicial  legislation  under  the  guise  of  interpreta- 
tion. Franklin  vs.  Franklin,  342. 

2.  The  act  of  1842,  ch.  229,  only  provides  a  more  summary  and  economi- 

cal remedy,  when  cases  abate  either  before  or  after  decree,  by  the 
death  of  the  parties,  and  does  not  embrace  the  case  of  a  decree  which 
has  become  dormant  by  lapse  of  time.  Ib. 

3.  The  act  of  1793,  ch.  43,  forbids  the  restoring  the  landlord  to  the  posses- 

sion of  the  premises,  when  he  is  proceeding  under  that  act,  only  when 
the  title  is  disputed  or  claimed  by  some  person,  in  virtue  of  a  right  or 
title  accrued  or  happening  since  the  commencement  of  the  lease.    Mousley 
vs.  Wilson,  388. 
See  APPEAL,  1,  4. 

CONSTITUTIONAL  LAW,  3,  10. 

CORPORATIONS,  7. 

DECREE  DORMANT  FROM  LAPSE  or  TIME,  1. 

DEEDS  VOID  UNDER  THE  INSOLVENT  LAWS,  1,  7. 


INDEX.  557 

CONSTRUCTION  OF  STATUTES—  Continued. 
See  DOWER,  3,  14. 

FREE  NEGROES. 

JUDGMENT  LIEN,  3. 

MECHANICS'  LIEN,  3. 

RECORDING  DEEDS. 

USURY,  4. 

CONSTRUCTION  OF  WILLS. 
See  WILL  AND  TESTAMENT. 

COMMISSIONS,  1. 

ELECTION,  1. 

POSTHUMOUS  CHILDREN. 
CONTRACTS. 

See  CORPORATIONS,  4,  5  to  8. 

SPECIFIC  PERFORMANCE. 

PART  PERFORMANCE. 
CONTRIBUTION. 
See  ASSIGNMENT,  3. 

CONTRIBUTION  AMONG  JOINT  OBLIGORS. 
CONTRIBUTION  AMONG  JOINT  OBLIGORS. 

1.  Three  joint  obligors  in  a  single  bill,  though  jointly  and  severally  liable  to 

the  creditor  for  the  whole  debt,  are,  as  among  themselves,  each  bound  to 
contribute  one-third  ;  because  each  must  be  supposed  to  have  received 
that  proportion  of  the  consideration  upon  which  the  obligation  was 
given.  Wheeler's  Estate,  80. 

2.  One  of  such  obligors,  who  has  received  from  another  a  sum  of  money  or 

other  property  equal  in  value  to  the  proportion  of  that  other  in  the  com- 
mon burden,  and  released  him  from  all  liability  on  account  thereof,  must 
be  supposed  to  have  received  a  consideration  equal  to  two-thirds  of  the 
debt,  and  must  be  charged  with  that  proportion  in  adjusting  the  equities 
between  himself  and  the  remaining  obligor.  Ib. 

3.  The  third  obligor,  who  has  been  compelled  by  the  creditor  to  pay  a  sum 

exceeding  his  one-third,  will  be  allowed  at  once,  in  equity  and  without 
circuity,  to  go  against  the  party  thus  supposed  to  have  received  two- 
thirds  of  the  consideration  of  the  debt,  for  such  excess.  Ib. 

4.  The  obligor  who  has  paid  the  judgment  of  the  creditor,  and  taken  an  as- 

signment thereof  to  himself,  may  use  such  assignment  for  his  indemnity, 
so  far  as  it  clearly  and  certainly  appears  that  his  co-debtor  ought  to  con- 
tribute. Ib. 

5.  Where  two  persons  executed  a  joint  note,  the  estate  of  the  one,  will, 

Tinder  the  chancery  rule,  be  charged  with  only  half  the  amount,  unless  it 

is  shown  that  he  is  the  principal  debtor,  or  that  the  other  is  insolvent. 

Brooks  vs.  Dent,  523. 
CONVERSION. 

Lands  devised  to  be  sold,  are  turned  into  money  and  considered  in  equity  as 

personal  estate.     Thomas  vs.  Wood,  296. 
See  MORTGAGOR  AND  MORTGAGEE,  6. 

47* 


558  INDEX. 

CONVEYANCES,  VACATING  OF. 

1.  The  circumstances  which  will  warrant  the  court  in  setting  aside  a  convey- 

ance, actually  executed,  must  be  much  stronger  than  would  be  required 
to  induce  it  to  withhold  its  aid,  if  applied  to,  to  compel  an  execution  of 
a  mere  agreement  to  convey.  Hollis  vs.  Hollis,  479. 

2.  A  voluntary  conveyance  made  by  a  person  not  indebted  at  the  time,  in 

favor  of  his  wife  and  children,  cannot  be  impeached  by  subsequent 
creditors  upon  the  mere  ground  of  its  being  voluntary.  Atkinson  vs. 
Philips,  507. 

3.  The  mere  fact,  that  the  grantor  was  indebted  at  the  time,  does  not,  per  se, 
'  constitute  a  substantial  ground  to  avoid  a  voluntary  conveyance  for 

fraud,  even  in  regard  to  prior  creditors.  The  question  of  fraud  is  to  be 
ascertained  from  all  the  circumstances  of  the  case,  and  not  alone  from 
the  mere  fact  of  indebtment  at  the  time.  16. 

4.  If  the  grantor  be  not  indebted  to  such  a  degree,  as  that  the  settlement  will 

deprive  the  creditors  of  an  ample  fund  for  the  payment  of  their  debts, 
the  consideration  of  natural  love  and  affection  will  support  the  deed, 
although  a  voluntary  one,  against  creditors,  because  it  is  free  from  the 
imputation  of  fraud.  Ib. 

5.  But  the  existence  of  such  means  to  pay  creditors  must  be  shown  by  the 

parties  claiming  under  the  deed,  and  the  burden  of  proof  is  clearly  upon 
them  to  repel  the  fraud  presumable  from  the  condition  of  the  grantor,  at 
the  time  the  conveyance  was  made.  16. 

6.  A  voluntary  conveyance  in  favor  of  the  wife  of  the  grantor,  was  set  aside 

in  this  case  in  favor  of  creditors,  upon  proof  that  he  was  largely  in- 
debted at  the  period  of  its  execution,  and  no  attempt  being  made  to  prove 
that  he  had  means  for  the  payment  of  his  debts.  76. 

7.  A  conveyance  purporting  to  be  made  for  a  monied  consideration  of  $3,500, 

was  also  set  aside  upon  clear  proof  that  the  grantor,  at  the  time,  was 
irretrievably  insolvent,  and  knew  himself  to  be  so,  and  that  it  was  made 
with  the  meditated  design  to  injure  and  defraud  his  creditors.  76. 

8.  A  deed,  fraudulent  and  void  as  to  creditors,  is,  nevertheless,  good  inter 

paries.    Ib. 

9.  The  permanent  trustee  of  an  insolvent  debtor  has  the  right  to  file  a  bill  to 

set  aside  conveyances  made  by  his  insolvent,  as  fraudulent  at  common 
law  or  under  the  statute  of  Elizabeth,  against  creditors.     Unless  the 
trustee  had  this  power,  the  creditors  prejudiced  by  the  conveyance  might 
be  without  remedy.    76. 
See  INADEQUACY  OF  PRICE,  6. 
CORPORATIONS. 

1.  So  long  as  the  charter  of  a  company  continues  in  existence,  their  property 

cannot  be  taken  from  them  upon  the  allegation  that  it  was  acquired  by 
an  abuse  of  their  chartered  privileges.  Hamilton  vs.  Annapolis  and  Elk 
Ridge  Rail  Road  Company,  107. 

2.  The  land  in  question  having  been  condemned  for  the  use  of  the  Annapolis 

and  Elk  Ridge  Rail  Road,  under  the  act  of  1826,  ch.  123,  sec.  15,  and 
the  inquisition  returned  to  and  duly  confirmed  by  the  proper  County 


INDEX.  559 

CORPORATIONS—  Continued. 

Court,  the  propriety  of  the  condemnation  and  use  of  the  property  cannot 
be  drawn  in  question,  in  an  incidental  or  collateral  proceeding.  Ib. 

3.  A  bill  filed  by  a  corporation,  need  not  be  under  its  seal.    That  it  is  the  bill 

of  the  corporation,  is  sufficiently  vouched  by  the  signature  of  the  solicitor, 
whose  authority  to  fill  it  need  not  be  exhibited.  Georges  Creek  Coal  and 
Iron  Co.  vs.  Detmold,  372. 

4.  A  corporation  may  avail  itself  of  its  want  of  authority  to  make  the  con- 

tract sought  to  be  enforced  against  it,  though  it  has  received  and  enjoyed 
the  consideration  upon  which  it  was  made.  Jllbert  and  wife  vs.  Savings 
Bank  et  al.,  407. 

5.  But  where  a  contract  of  a  corporation  has  been  executed  by  the  parties  to 

it,  it  is  not  competent  for  a  mere  stranger  to  the  contract  to  assail  it,  and 
deprive  the  corporation  of  the  advantage  derived  from  it,  upon  the  ground 
that  it  was  interdicted  by  the  charter.  Ib. 

6.  Corporations  can   make  no  contracts  which  are  not  necessary,  either 

directly  or  indirectly,  to  effect  the  objects  of  their  creation  ;  and  a  cor- 
poration itself  may,  in  an  action  brought  against  it  upon  such  contract, 
deny  its  power  to  enter  into  it.  Abbott  vs.  The  Baltimore  and  Rappahan- 
nock  Steam  Packet  Co.,  542. 

7.  The  act  of  1829,  ch.  42,  incorporated  the  defendant  for  the  purpose  of 

establishing  and  conducting  a  line  of  steamboats  and  stages  or  carriages 
between  Baltimore  and  the  several  ports  and  places  on  the  Rappahan- 
nock,  and  on  the  rivers  and  waters  of  the  Chesapeake  bay,  for  the  convey- 
ance of  passengers  and  transportation  of  merchandise  and  other  articles 
The  company  entered  into  an  obligation  to  aid  in  an  improvement,  the 
purpose  of  which  was  to  open  the  Rappahannock  river,  and  render  it 
navigable  to  the  basin  in  or  near  Fredericksburg.     HELD — 
That  the  proposed  improvement  being  above  the  Virginia  terminus  of 
the  route  between  which  and  Baltimore  the  boats  were  to  run,  for 
that  reason  was  not  within  the  authority  conferred  upon  the  com- 
pany by  its  charter.     And  even  if  it  had  been,  between  the  termini, 
it  would  not  have  been  within  the  powers  granted  by  the  act  of  in- 
corporation.    16. 

8.  It  is  well  settled  in  this  country,  that  the  acts  of  a  corporation,  evidenced 

by  a  note  written  or  unwritten,  are  as  completely  binding  upon  it,  and  as 
full  authority  to  its  agents  as  the  most  solemn  acts  done  under  the  cor- 
porate seal,  and  that  promises  and  engagements  may  as  well  be  implied 
from  its  acts  and   the  acts  of  its  agents,  as  if  it  were  an  individual. 
Elysville  Manuf.  Co.  vs.  Okisko  Company,  392. 
See  AGENT,  2,  3. 
ATTORNEY. 

LIABILITY  OF  CORPORATIONS  ON  TRANSFERS  OF  THEIR  STOCKS. 
FORFEITURE  OF  CHARTER. 
COUNTY  COURTS. 

See  CONCURRENT  JURISDICTION,  2. 
CREDITORS. 

See  MARRIAGE  SETTLEMENT,  4. 


560  INDEX. 

CREDITORS— Continued. 

RESULTING  TRUST,  3. 
RECORDING  OF  DEEDS. 
JUDGMENT  CREDITORS. 
FOREIGN  CREDITORS. 
CONVEYANCES,  VACATING  OF. 

DAMAGES  FOR  DETENTION  OF  DOWER. 
See  JURISDICTION,  3. 

DECREE. 

See  PRACTICE  IN  CHANCERY,  1,  37,  to  40  and  48. 
DECREE  FOR  AN  ACCOUNT. 
DECREE  DORMANT  FROM  LAPSE  OF  TIME. 

DECREE  FOR  AN  ACCOUNT. 

A  decree  for  an  account  in  a  suit  by  one  or  more  creditors  against  the  execu- 
tors, either  for  themselves  or  on  behalf  of  themselves  and  all  other  credi- 
tors, is  for  the  benefit  of  all  and  in  the  nature  of  a  judgment  for  all,  and 
from  the  date  of  such  decree  an  injunction  will  be  granted  upon  motion 
of  either  party,  and  upon  due  disclosure  of  assets,  to  stay  all  proceedings 
of  any  creditor  at  law.  Boyd  &f  Hance  vs.  Harris,  466. 
See  INJUNCTION,  16. 

DECREE  DORMANT  FROM  LAPSE  OF  TIME.- 

1.  The  act  of  1842,  ch.  229,  only  provides  a  more  summary  and  economi- 

cal remedy,  when  cases  abate  either  before  or  after  decree,  by  the 
death  of  parties,  and  does  not  embrace  the  case  of  a  decree  which  has 
become  dormant  from  lapse  of  time.  Franklin  vs.  Franklin,  342. 

2.  The  legal  presumption,  when  the  three  years  from  the  date  of  the  decree 

have  elapsed,  is,  that  it  has  been  executed 'or  satisfied,  and  the  appro- 
priate remedy  is  to  revive  it  by  a  bill  of  revivor.     Ib. 
DEEDS  VOID  UNDER  THE  INSOLVENT  LAWS. 

1.  To  avoid  a  deed  under  the  acts  of  1812,  ch.  77,  and  1816,  ch.  121,  it  is 

necessary  to  show,  not  only  that  an  undue  and  improper  preference 
was  given  by  the  debtor,  but  also,  that  this  was  done  with  a  view  or 
under  an  expectation  of  taking  the  benefit  of  the  insolvent  laws.  Glenn 
vs.  Baker,  73. 

2.  Such  intent  may  be  established  by  facts  and  circumstances  as  in  other 

cases,  and  the  fact  that  a  party,  when  he  executed  the  deed,  could  not 
apply  for  the  benefit  of  the  insolvent  laws,  for  want  of  the  residence 
required  to  bring  him  within  their  provisions,  is  a  strong  circumstance 
to  show  that  such  was  not  his  view  and  expectation  at  that  time.  Ib. 

3.  The  facts  of  this  case  distinguished  from  those  of  Dulaney  vs.  Hoffman, 

7  Gill  Sf  Johns.,  170.    Ib. 

4.  It  has  been  settled  by  the  highest  authority  in  this  state,  that  a  debtor  in 

failing  circumstances,  may  prefer  one  creditor  to  another,  by  a  trans- 
fer of  his  property  made  in  good  faith,  and  that  in  similar  circum- 
stances, a  transfer  by  a  debtor  of  his  whole  estate  to  trustees  for  the 
benefit  of  all  his  creditors,  is  free  from  objection.  Malcolm  vs.  Hall,  172. 

5.  Yet  if  such  payment  or  transfer  be  made  with  a  view,  or  under  an  ex- 

pectation of  taking  the  benefit  of  the  insolvent  laws,  and  with  an  in- 


INDEX.  561 

DEEDS  VOID  UNDER  THE  INSOLVENT  LAWS—  Continued. 

tent  thereby  to  give  an  undue  and  improper  preference  to  such  credi- 
tor, then  such  payment  and  transfer  are  void  under  the  provisions  of 
our  insolvent  system.  76. 

6.  The  distinction  recognised  in  England  between  voluntary  or  involuntary 
transfers,  are  applicable  to  our  insolvent  system,  and  to  avoid  such 
transfers  for  fraud  upon  that  system,  they  must  be  shown  to  be  volun- 
tary, as  well  as  made  with  a  view  and  under  an  expectation  of  taking 
the  benefit  of  the  insolvent  laws.  Ib. 

1.  The  act  of  1834,  ch.  293,  effected  two  alterations  in  the  system,  so  far 
as  the  city  and  county  of  Baltimore  are  concerned.  1st,  It  invalidated 
the  transfer  whether  made  upon  request  or  not.  2d,  No  such  trans- 
fer could  be  made  in  favor  of  one  creditor  to  the  prejudice  of  the  rest, 
if  the  debtor  making  it  shall  have  no  reasonable  expectation  of  being 
exempted  from  liability  or  execution  on  account  of  his  debts,  without 
applying  for  the  benefit  of  the  insolvent  laws.  .  Ib. 

8.  Yet  under  this  act,  there  must  be  found  in  the  transfer  or  assignment  an 
intention  to  prefer  one  creditor  over  another  ;  or,  notwithstanding  the 
party  had  no  reasonable  expectation  of  escaping  by  a  recourse  to  the 
insolvent  laws  for  relief,  the  transfer  or  assignment  will  stand,  and  as 
the  deed  in  this  case  made  no  such  preference,  it  was  held  valid.  Ib. 
DELIVERY  OF  POSSESSION. 

See  PART  PERFORMANCE,  5. 
DEMURRER. 

1.  Upon  a  demurrer  to  a  bill,  because  it  sought  to  compel  the  defendants 

to  a  disclosure  of  their  titles.  The  title  of  the  plaintiff  not  appearing 
to  be  at  all  dependent  upon  or  connected  with  that  of  the  defendant, 
the  demurrer  was  ruled  good.  Cullis&nvs.  Bossom,  95. 

2.  Allowing  a  demurrer  to  a  whole  bill,  in  strictness,  puts  it  out  of  court, 

and  no  subsequent  proceedings  can  be  taken  in  the  cause  ;  yet  the 
court  has  sometimes  permitted  an  amendment  to  the  bill  to  be  made. 
Ib. 

See  DISCOVERY  OF  TITLE,  1,  3. 
PRACTICE  IN  CHANCERY,  5. 
DEVISE. 

See  WILL  AND  TESTAMENT. 
DISCOVERY  OF  TITLE. 

1.  Upon  a  demurrer  to  a  bill  because  it  sought  to  compel  the  defendants  to 

a  disclosure  of  their  titles,  it  was  HELD — 

That  the  right  of  a  plaintiff  in  equity  to  the  benefit  of  the  defend- 
ant's oath,  is  limited  to  a  discovery  of  such  material  facts  as  re- 
late to  the  plaintiff's  case,  and  does  not  extend  to  a  discovery  of 
the  manner  in  which,  or  the  means  by  which,  the  defe:  lant's 
case  is  to  be  established.  Cullison  vs.  Bossom,  95. 

2.  Where  there  is  a  privity  shown  to  exist  between  the  title  of  the  plaintiff 

and  defendant,  that  privity  may  give  him  the  right  to  call  for  an  ex- 
posure of  the  defendant's  title  ;  but  unless  such  connection  is  shown, 


562  INDEX. 

DISCOVERY  OF  TITLE— Continued. 

he  has  no  such  right,  whether  the  bill  be  for  discovery  only,  or  for 

discovery  and  relief.     Ib. 
3.  The  title  of  the  plaintiffs  not  appearing  to  be  at  all  dependent  upon,  or 

connected  with,  that  of  the  defendant,  the  demurrer  was  ruled  good.  Ib. 
DOWER. 

1.  A  lease  for  ninety-nine  years,  renewable  for  ever,  is  a^rnere  chattel  in- 

terest, and  not  an  estate  in  lands  from  which  dower  can  be  claimed. 
Spangler  vs.  Sp angler,  36. 

2.  To  make  out  a  claim  for  dower,  it  is  necessary  to  show  that  the  husband 

was  seized  of  an  estate  of  inheritance,  during  coverture,  of  which  any 
issue  the  wife  might  have  had  might  by  possibility  have  been  heir.  16. 

3.  Leases  containing  covenants,  on  the  part  of  the  lessor  to  convey  the  fee 

simple  to  the  lessees,  when  requested  so  to  do,  cannot  be  made  to 
operate  as  a  conveyance  by  lease  and  release  at  common  law,  and  the 
estates  which  passed  by  such  deeds  of  lease,  were  legal  and  not  equit- 
able estates  ;  and  consequently  the  act  of  1818,  ch.  193,  extending  the 
dower  right  to  lands,  held  by  equitable  title  in  the  husband,  has  no  ap- 
plication. 16. 

4.  If  the  widow  die  without  demanding  her  dower,  her  executor  cannot 

recover  the  rents  and  profits,  the  cases  having  only  gone  to  the  extent 
of  entertaining  a  bill  for  the  profits  where  the  widow  dies  pending  her 
bill  for  dower.  Kiddall  vs.  Trimble,  144. 

5.  Whilst  the  suit  for  rents  and  profits  was  depending  in  a  court  of  law, 

the  plaintiff  voluntarily  aliened  the  legal  estate  out  of  which  the  profits 
sprung,  and  the  direction  of  the  court  to  the  jury  being  generally  "that 
the  plaintiff  was  not  entitled  to  recover,"  it  was  HELD — 

That  the  court  may  have  been  of  opinion  that,  as  the  damages  which 
are  given  for  the  detention  of  dower  are  regarded  as  consequential 
or  accessory  they  could  not  be  separately  demanded.  16. 

6.  Had  the  action  at  law  been  for  the  dower  itself,  instead  of  being  for  the 

rents  and  profits  of  the  land  withheld  from  the  widow,  her  alienation 
pending  that  suit,  would  have  been  an  effectual  bar  to  her  recovery. 
Ib. 

7.  The  title  to  the  land  itself  must  be  first  vindicated,  before  a  claim  for 

the  fruits  can  be  admitted,  and  a  bill  for  the  rents  and  profits  would  be 
premature  until  the  dower  itself  is  recovered.  16. 

8.  There  can  be  no  dou,bt  that  a  wife,  notwithstanding  she  joins  her  hus- 

band in  a  mortgage,  may,  nevertheless,  take  her  dower  in  the  land 
subject  to  the  mortgage,  and  that  she  has  a  right  to  redeem,  and  may 
call  upon  the  personal  representatives  of  her  deceased  husband  to  ap- 
ply the  personal  assets  to  the  extinguishment  of  the  mortgage  debt,  so 
as  to  free  her  dower  from  the  incumbrance.  Mantz  vs.  Buchanan,  203. 

9.  It  is  equally  clear,  that  if  a  wife,  in  Maryland,  relinquishes  her  dower  in 

lands  mortgaged  by  her  husband  upon  private  examination,  according 
to  the  acts  of  assembly  upon  the  subject,  and  the  lands  are  sold  to  sat- 
isfy the  mortgage  debt,  whatever  may  be  her  right  to  a  proportion  of 
the  proceeds  of  sale,  she  cannot,  as  against  the  purchaser,  claim  dower 
in  the  land.  Ib- 


INDEX.  563 

DOWER—  Continued. 

10.  The  claim  of  a  widow  for  dower,  is  a  highly  favored  one,  and  with 
respect  to  a  devise  accepted  by  her  in  lieu  of  it,  she  is  by  the  terms  of 
the  act  of  assembly,  and  by  judicial  decision,  regarded  as  a  purchaser 
for  a  fair  consideration.     Ib. 

11.  Where  the  widow  had  received  an  assignment  of  her  dower  in  lands, 
by  a  court  of  competent  jurisdiction,  and  the  lands  were  subsequently 
sold  under  a  decree  to  satisfy  the  mortgage  debt,  it  was  HELD — That 
this  assignment  did  not  deprive  her  of  the  right  to  be  provided  for  out 
of  the  remaining  estate  of  her  husband.     76. 

12.  The  law  intends  to  gives  the  widow  one-third  of  the  husband's  real 
estate  by  way  of  dower,  and  as  a  provision  for  her  support,  but  she 
takes  it  subject  to   liens  created  prior  to  the  marriage,  or  to  such 
as  she  consents  to  after  the  marriage,  in  the  mode  pointed  out  by  the 
legislature,  and  she  can  take  no  more.     Ib. 

13.  A  partial  failure  of  a  devise  to  a  widow  who  abides  by  the  will,  will 
not  entitle  her  to  compensation  out  of  the  residue  of  the  estate,  unless 
the  failure  is  to  such  an  extent  as  to  make  what  she  receives  under 
the  will,  less  in  value  than  her  legal  share  of  her  husband's  estate. 
Thomas  vs.  Wood,  297. 

14.  When  it  is  said  in  the  act  of  1798,  ch.  101,  sub.  ch.  13,  sec.  5,  that  a 
widow,  standing  by  the  will  of  her  husband,  is  to  be  considered  as  a 
purchaser  with  a  fair  consideration,  it  cannot  be  meant,  that  she  is  so 
to  be  regarded,  whatever  may  be  the  extent  of  the  devise  to  her.     Ib. 

15.  But  the  sound  and  just  rule  must  be,  that  she  is  to  be  considered  a  pur- 

chaser of  the  devise,  to  the  value  of  her  share  or  legal  right.     Ib. 

16.  It  having  been  decided  that  a  widow  was  entitled  to  an  allowance  out 
of  the  proceeds  of  sale  of  partnership  lands,  in  lieu  of  dower,  and  the 
husband  having  died  in  1825,  and  the  sale  not  having  been  made  until 
1845,  it  was  HELD — That  the  age  of  the  widow  of  the  death  of  her  hus- 
band should  be  taken  in  fixing  her  allowance  under  the  chancery  rule. 
Goodburn  vs.  Stevens,  420. 

17.  The  right  of  a  widow  to  dower  in  partnership  property,  is  suspended 
until  the  purposes  of  the  partnership  are  accomplished  by  paying  all 
claims  against  it,  and  adjusting  the  accounts.     She  cannot,  therefore, 
claim  rents  and  profits  from  the  death  of  her  husband.     Ib. 

18.  Where  a  husband  aliens  land  in  his  lifetime,  in  which  the  wife  refuses 
to  relinquish  her  dower  right,  in  assigning  the  wife  a  compensation  in 
money  in  lieu  of  her  dower,  the  value  of  the  land  at  the  time  of  the 
death  of  the  husband  is  to  be  regarded,  and  not  its  value  at  the  time  of 
the  alienation,  unless  its  increased  value  has  arisen  from  the  labor  and 
money  of  the  alienee.     Bowie  vs.  Berry,  452. 

19.  The  improved  value  of  the  land  from  which  the  widow  is  to  be  exclud- 
ed in  the  assignment  of  her  dower,  as  against  a  purchaser  from  her 
husband,  is  that  which  has  arisen  from  the  active  labor  and  money  of 
the  owner,  and  not  that  which  has  arisen  from  extrinsic  or  general 
causes.     16. 

20.  Where  the  husband  holds  only  the  equitable  title  and  parts  with  it  in 
his  lifetime,  the  widow  shall  not  be  allowed  dower.     76. 


564  INDEX. 

DOWER—  Continued. 

21.  The  interest  of  the  widow  is  a  continuation  of  the  seizin  of  her  hus- 
band, the  seizin  of  the  heir  being  defeated  ab  initio  the  moment  the 
certainty  of  the  estate  to  be  held  by  her  is  ascertained  by  assignment. 
Childs  vs.  Smith,  483. 

22.  The  commissioners  divided  an  estate  into  eight  parts,  and  assigned  a 
third  of  each  division  to  the  widow  as  her  dower.    One  lot  consisted 
almost  entirely  of  wood,  the  others  of  arable  land.    HELD — That  the 
widow  was  not  bound  to  use  each  parcel,  as  if  her  husband  had  died 
seized  only  of  the  one  lot,  to  which  such  parcel  belonged,  but  might 
take  from  the  wood  lot,  fuel  and  timber  for  the  use  of  the  cultivated 
lands.     Ib. 

See  JURISDICTION,  2,  3,  13. 
LAPSE  OF  TIME,  4. 
LIMITATIONS,  STATUTE  OF,  4. 
PARTNERSHIP  AND  PARTNERS,  2. 
ELECTION. 

1.  The  degree  of  intention  necessary  to  raise  a  case  of  election  must  plain- 

ly appear  upon  the  face  of  the  will,  but  the  court  is  not  to  disregard 
what  amounts  to  a  moral  certainty  of  the  intention  of  the  testator. 
Waters  vs.  Howard,  112. 

2.  Where  the  administratrix  of  a  deceased  partner  filed  a  bill  against  the 

surviving  partners,  alleging  that  the  business  of  the  partnership  had 
been  carried  on  under  the  old  name,  and  large  profits  made,  and  praying 
that  her  intestate's  share  of  such  profits  might  be  paid  over  to  her  as 
administratrix,  it  was  HELD — That  by  such  a  proceeding  she  had 
elected  to  claim  profits  and  not  interest,  and  that  a  party  cannot  claim 
profits  for  one  period  and  interest  for  another.  Goodburn  and  wife  vs. 
Stevens  et  al.,  420. 

See  EVIDENCE,  4. 
EMINENT  DOMAIN. 

See  CONSTITUTIONAL  LAW,  5  to  10. 
ENROLLMENT  OF  DECREE. 

See  PRACTICE  IN  CHANCERY,  1,  38. 
EQUITY  AND  EQUITABLE  DEFENCE. 

1.  The  defendants  conveyed  by  deed  a  large  amount  of  real  and  personal 
property  to  trustees,  in  trust  to  sell  the  same,  and  out  of  the  proceeds 
to  pay  the  claims  of  their  creditors,  without  priority  or  preference,  ex- 
cept as  the  same  might^  exist  at  law.  The  trustees  in  execution  of 
their  trust,  sold  parcels  thereof  to  the  complainant  and  others.  At 
the  time  this  deed  was  executed,  there  were  unsatisfied  judgments  to 
a  large  amount  against  the  grantors,  upon  some  of  which,  writs  of 
scire  facias  were  issued,  and  fiats  rendered  against  the  original  defend- 
ants in  the  judgments,  and  the  terretenants,  the  purchasers,  from  the 
trustees,  and  upon  these  Jiats  writs  of  fieri  facias  were  issued  and  laid 
upon  the  lands  purchased  by  complainant.  Upon  a  bill  to  restrain 
proceedings  upon  these  executions,  it  was  HELD — 


INDEX.  565 

EQUITY  AND  EQUITABLE  DEFENCE—  Continued. 

1.  That  if  the  judgment  creditors  assented  to  the  deed  of  trust,  and 
by  their  conduct  induced  the  complainant,  and  others,  to  become 
purchasers  of  the  land  bound  by  their  judgments,  and  to  believe 
that  they  would  look  to  the  trustees  for  the  payment  of  their  claims, 
and  not  to  their  judgment  liens,  such  conduct  would  furnish  a 
valid  equitable  defence. 

2.  To  allow  the  judgment  creditors,  after  such  a  course  of  conduct, 
to  enforce  their  judgments  against  the  purchasers,  would  be  to 
permit  them  to  perpetrate  a  fraud  upon  the  latter.    Upon  such  a 
state  of  facts,  the  ,'purchasers  would  not  be  bound  to  see  to  the 
application  of  the  purchase  money. 

3.  A  defence,  founded  upon  such  circumstances,  can  only  be  ren- 
dered available  in  a  court  of  equity  on  the  ground  of  fraud.     DovJb 
vs.  Barnes,  127. 

EVIDENCE. 

1.  It  is  an  established  rule  of  evidence  in  this  state,  that  the  answer  of  one 

defendant  in  chancery,  is  not  evidence  against  the  other  defendants. 
Glenn  vs.  Baker,  73. 

2.  The  answer  of  one  defendant,  when  responsive  to  the  bill,  is  evidence 

against  the  plaintiff  in  favor  of  the  other  defendants.     76. 

3.  Where  the  rights  of  the  insolvent  are  identically  the  same,  whether  the 

decision  passes  one  way  or  the  other,  he  would  be  a  competent  witness 
for  either  party.  Ib, 

4.  Though  evidence  dehm-sa.  will,  will  not  be  admitted  to  prove  or  disprove 

the  intention  of  a  testator  to  raise  a  case  of  election,  there  can  be  no 
valid  objection  to  such  evidence  to  show  the  state  and  circumstances 
of  the  property.  Waters  vs.  Howard,  112. 

5.  A  party  who  has  assigned  a  judgment  without  recourse,  except  as  to 

his  right  to  assign  and  transfer  the  same,  is  a  competent  witness  for 
the  assignee  in  a  suit  to  enforce  the  judgment,  the  warranty  extend- 
ing only  to  the  right  to  make  the  assignment.  Dmib  vs.  Barnes,  128. 

6.  As  evidence  of  payment  of  a  legacy  due  to  a  ward,  the  defendants  relied 

upon  a  memorandum  in  the  hand-writing  of  C.,  the  husband  of  the 
ward,  by  which  he  charged  himself  with  "amount  of  B's  draft  $500," 
(B.  being  the  guardian.)     The  draft  was  not  produced,  and  there  was 
no  proof  of  its  payment,  or  on  what  account  it  was  drawn.    They  fur- 
ther claimed  a  credit  of  $1500,  being  the  amount  of  a  check  of  B.  on 
the  Bank  of  Baltimore,  payable  to  C.,  or  bearer,  which  was  paid  by  the 
bank,  but  to  whom  the  money  was  paid  did  not  appear.     HELD — 
That  this  evidence  of  payment,  was  wholly  inconclusive  and  unsat- 
isfactory, and  that  it  would  be  a  departure  from  the  rules  estab- 
lished for  the  ascertainment  of  truth  to  give  it  the  effect  for  which 
the  defendants  insist.     Grain  vs.  Barnes  ff  Fergusson,  152. 

7.  Courts  [of  justice  are  not  at  liberty  to  indulge  in  wild,  irrational 

conjectures,  or  licentious  speculations,  but  must  act  upon  fixed  and 
settled  rules.  And  it  is  far  better  that  individuals  should  occasionally 
suffer,  than  that  principles,  which  time  and  experience  have  shown 

VOL.  i — 48 


566  INDEX. 

EVIDENCE—  Continued. 

to  be  essential  to  the  ascertainment  of  truth,  should  be  broken  down 
or  disregarded.  Ib. 

8.  The  rules  of  evidence  in  regard  to  explaining,  or  varying,  or  contradict- 

ing written  evidence,  are  the  same  in  courts  of  equity  as  in  courts  of 
law.  Elysville  Manufacturing  Co.  vs.  Okisko  Co.,  392. 

9.  It  was  urged,  that  the  defendants  should  be  required  to  offer  proof  in 

support  of  some  statements  of  the  answer,  though  responsive  to  the 
bill;  because  such  proof  was  within  their  reach,  whilst  it  was  inac- 
cessible to  the  complainants.  HELD — That  the  rule  that  the  answer 
when  responsive  to  the  averments  of  the  bill,  shall  be  taken  as  true, 
unless  discredited  by  two  witnesses,  or  one  witness  with  pregnant  cir- 
cumstances, is  not  subject  to  the  modification  which  the  introduction 
of  such  a  principle  would  involve.  Thompson  vs.  Diffenderfer,  489. 

10.  Evidence  of  declarations,  made  by  a  husband  during  coverture,  is  not 

admissible  against  creditors  of  the  husband  to  establish  a  secret  parol 
agreement  between  him  and  the  wife,  in  reference  to  property  stand- 
ing in  the  husband's  name  during  his  lifetime.  Brooks  vs.  Dent,  523. 

11.  Parol  evidence  is  admissible  to  show,  that  an  absolute  conveyance  was 
intended  as  a  mortgage,  and  that  the  defeasance  was  omitted  or  de- 
stroyed by  fraud  or  mistake.     Bank  of  Westminster  vs.  WTiyte,  536. 

12.  But  unless  accident,  fraud  or  mistake  can  be  shown,  or  in  cases  of 
trusts,  parol  evidence  cannot,  either  at  law  or  in  equity,  be  admitted  to 
contradict,  add  to,  or  vary  the  terms  of  a  will,  deed  or  other  instru- 
ment.    76. 

13.  It  is  competent  to  show  the  intention  of  the  wife  to  charge  her  sepa- 
rate estate  by  parol  evidence.     Conn  vs.  Conn,  212. 

See  AGENT,  1. 

SALES  BY  TRUSTEES,  11. 
PRACTICE  IN  CHANCERY,  26,  34,  35. 
EXCEPTIONS  TO  ANSWER. 

1.  Exceptions  to  an  answer  for  insufficiency  can  only  be  sustained  where 
.  some  material  allegation,  charge  or  interrogatory  of  the  bill  is  not 

fully  answered.     West  vs.  Williams,  358. 

2.  The  court  must  see  by  referring  to  the  bill  alone,  in  connection  with 

the  exceptions,  that  the  precise  matters  as  to  which  a  further  answer 
is  sought,  are  stated  in  the  bill,  or  that  such  an  answer  is  called  for  by 
the  interrogatories.  >lb. 

3.  Exceptions  to  an   answer,  upon  the  ground  that  the  defendant  did  not 

give  a  detailed  account  of  the  management  of  a  trust  fund,  which  came 
to  his  hands  as  agent,  were  overruled,  because  the  bill  only  called  upon 
him  for  an  account  of  the  business  of  the  trust  and  not  for  an  account 
of  the  business  of  the  trust  and  agency.  Ib. 

EXECUTED  AGREEMENTS,  CONTRACTS  AND  CONVEYANCES. 
See  CONVEYANCES,  VACATING  OF,  1. 

CORPORATIONS,  5. 

EXECUTORS  AND  ADMINISTRATORS. 
See  DOWER,  4. 


INDEX.  567 

EXECUTORS  AND  ADMINISTRATORS— Continued. 
See  TRANSFER  BY  OPERATION  OF  LAW. 

COMMISSIONS,  1. 
EX  POST  FACTO  LAWS. 

See  CONSTITUTIONAL  LAW,  2,  3. 
EXTINGUISHMENT  OF  DEBTS. 

1.  The  taking  of  acceptances  for  a  pre-existing  debt  cannot  have  the  effect 
of  extinguishing  the  debt.     Harness  vs.  Chesapeake  and  Ohio  Canal  Com- 
pany, 249? 
FAMILY  SETTLEMENT. 

See  SURCHARGING  AND  FALSIFYING  ACCOUNTS,  3. 
FOREIGN  CREDITORS. 

1.  The  rights  of  foreign  creditors  are  not  affected  by  the  discharge  of  ail 

insolvent  under  the  laws  of  Maryland.    Potter  vs.  Kerr,  275. 

2.  A  discharge  under  the  insolvent  laws  of  Maryland  cannot  affect  the 

rights  of  foreign  creditors  to  obtain  against  the  insolvent,  in  the  Mary- 
land courts,  an  absolute  and  unqualified  judgment,  and  to  place  their 
execution  upon  any  property  of  the  insolvent  debtor  to  be  found  in  the 
hands  of  the  trustee.     Ib. 
FORFEITURE  OF  CHARTER. 

1.  A  cause  of  forfeiture  of  a  charter  of  incorporation  cannot  be  taken  ad- 
vantage of,  collaterally  or  incidentally,  but  must  be  enforced  by  scire 
facias  or  quo  warranto,  at  the  instance  of  the  government,  and  until  the 
government  so  interferes,  the  franchise  continues.  Hamilton  vs.  Annap- 
olis and  Elk  Ridge  Rail  Road  Company,  107.  t 

See  CORPORATIONS,  1. 
FRAUD. 

1.  A  party  who  attempts  to  protect  himself  from  the  consequences  of  an 

engagement  into  which  he  has  entered  upon  the  plea  that  he  has  been 
imposed  upon,  must  make  out  the  imposition  by  proof.  Duvall  TS. 
Code,  168. 

2.  Fraud  is  not  to  be  presumed,  and   though  it  may  not  be  necessary  to 

prove  it  by  direct  and  positive  testimony,  yet  the  circumstances  upon 
which  the  presumption  of  its  existence  is  to  be  founded,  should  lead 
plainly  and  directly,  and  by  strong  implication,  to  that  conclusion.  Ib. 

3.  Deliberate  settlements  and  solemn  instruments  are  not  to  be  impeached 

and  overthrown  by  light  and  trivial  circumstances,  which,  at  most,, 
furnish  a  foundation  for  ingenious  minds  to  speculate  upon,  and  to 
weave  plausible  theories  of  unfairness  in  the  transaction  with  which 
they  are  associated.  Ib. 

See  CONVEYANCES,  VACATING  OF. 
EQUITY  AND  EQUITABLE  DEFENCE. 
FRAUDULENT  CONVEYANCES,  1,  2. 
STATUTE  OF  FRAUDS.     JURISDICTION,  15. 
FRAUDULENT  CONVEYANCES. 

1.  It  being  proved,  that  the  husband,  with  a  design  to  deprive  his  widow 
of  her  share  of  his  personal  estate,  executed  the  conveyances  in  ques- 
tion, but  did  not  part  with  the  possession,  but  lived  upon  and  enjoyed 


568  INDEX. 

FRAUDULENT  CONVEYANCES—  Continued. 

the  property  until  his  death,  the  deeds  were  set  aside  as  frauds  upon 
the  rights  of  the  wife.  Hays  vs.  Henry,  337. 

2.  One  of  the  badges  of  fraud  in  such  cases,  is  the  retention  of  the  posses- 
sion of  the  property  by  the  husband,  after  the  transfer  of  the  title  or 
keeping  of  the  deeds  in  his  hands  after  its  execution.    16. 
FREE  NEGROES. 

1.  Slaves  manumitted  since  the  act  of  1831,  ch.  281,  cannot  remain  in  this 
state  in  a  condition  of  freedom,  though  the  Orphans'  Courts  may,  in 
their  discretion,  give  them  annual  permits  to  remain,  as  by  said  act  is 
provided.    Negro  Morico  vs.  Mitchell,  356. 
GENERAL  INTENT. 

See  WILL  AND  TESTAMENT,  13. 
GUARDIAN  AND  WARD. 

1.  A  proceeding  of  the  representatives  of  a  ward  against  the  executors  of 

a  guardian,  to  recover  a  legacy  bequeathed  to  a  ward,  and  which  the 
guardian  had  received  from  the  executors  of  the  testator,  who  made 
the  bequest,  is  clearly  within  the  jurisdiction  of  a  court  of  equity. 
Grain  vs.  Barnes  and  Fergusson,  151. 

2.  The  relation  of  guardian  and  ward,  and  the  rights  and  obligations  which 

grow  out  of  it,  are  peculiarly  within  the  jurisdiction  of  a  court  of  equi- 
ty, and  its  power  to  afford  a  remedy  for  a  breach  of  the  trust  cannot  be 
questioned,  unless  it  has  been  taken  away  by  some  express  statutory 
enactment.  16. 

3.  Every  guardian,  Ijowever,  appointed,  is  responsible  in  equity  for  his 

conduct,  and  may  be  removed  for  misbehavior.     76. 

See  JURISDICTION,  5,  6- 
HOLDERS  OF  NEGOTIABLE  PAPER. 

See  PROMISSORY  NOTES. 
HUSBAND  AND  WIFE. 

1.  A  husband  and  wife  for  a  bona  fide  and  valuable  consideration,  may 

contract  for  a  transfer  of  property  from  him  to  her.    Brooks  vs.  Dent, 
-,  523. 

2.  If  the  wife  had  performed  her  part  of  the  agreement  made  between  her 

husband  and  herself,  she  would  have  an  equity  as  against  the  husband 
and  his  heirs,  to  have  it  carried  into  effect  on  their  side,  though  the 
agreement  was  only  by  parol.     Ib. 
INADEQUACY  OF  PRICE. 

1.  Where  a  sale  is  objected  to  on  the  ground  of  inadequacy  of  price,  re- 

sulting from  doubts  about  the  title,  which  doubts  could  have  been  re- 
moved by  reasonable  efforts  on  the  part  of  the  trustee,  his  neglect  to 
do  so  may  affect  the  question  of  ratification.  Gibbs  vs.  Cunningham,  44. 

2.  Inadequacy  of  price  will  not  induce  the  court  to  vacate  a  sale,  in  other 

respects  unexceptionable,  unless  such  inadequacy  is  so  gross  as  to  in- 
dicate a  want  of  reasonable  judgment  and  discretion  on  the  part  of  the 
trustee.  16.  et  Hintze  vs.  Stingel,  283. 

3.  The  sale   in  this  case  was  made  for  $3,000.     HELD — That  an  offer  of 

$4,000  made  subsequently  to  the  sale,  and  after  the  value  of  the  prop- 


INDEX.  569 

INADEQUACY  OF  PRICE— Continued. 

erty  had  been  enhanced,  could  have  but  little  weight  in  determining 
whether  the  property  previously  sold  at  a  price  so  much  below  its 
value  as  to  indicate  a  want  of  reasonable  judgment  in  the  trustee. 
Gibbs  vs.  Cunningham,  44. 

4.  But  where  any  other  just  cause  appears  to  doubt  the  propriety  of  the 

sale,  it  is  a  consideration  very  proper  to  be  viewed,  in  connection  with 
it,  that  the  sale  was  made  at  a  reduced  price.  Hintze  vs.  Stingel,  283. 

5.  It  appearing  that  the  defendant,  who  was  a  German,  and  imperfectly 

acquainted  with  our  language,  called  upon  the  trustee  a  few  days  be- 
fore the  sale,  for  information  as  to  the  day  of  sale,  and  that  either  the 
trustee  incautiously  misinformed  him  on  the  subject,  or  that  he  mis- 
understood the  trustee,  owing  to  his  imperfect  knowledge  of  the  Eng- 
lish language,  and  that  a  bidder,  who  would  give  nearly  twice  the 
amount  for  which  the  property  was  struck  off,  was  kept  from  attend- 
ing the  sale,  by  the  information  which  he  received  from  the  defend- 
ant, upon  these  circumstances  and  the  concurrence  of  the  complainant 
in  the  application,  the  sale  was  set  aside.  Ib. 

6.  Inadequacy  of  price  may  be  so  gross  as  to  induce  the  court  to  set  aside 

a  conveyance  actually  made.     Hollis  vs.  Hollis,  479. 
See  SALES  BY  TRUSTEES,  3  to  5. 
INJUNCTION. 

1.  If  a  mortgagor  in  possession,  is  committing  waste,  equity  will  restrain 

him  by  injunction.     Brown  vs.  Stewart,  87. 

2.  Where  a  mortgagee  files  a  bill  for  the  sale  of  the  mortgaged  property 

for  the  satisfaction  of  his  debt  then  due,  and  alleges,  that,  it  being  in 
possession  of  the  mortgagor,  has  been,  or  is  about  to  be  wasted  ; 
or  where  it  consists  of  personalty,  is  about  to  be  removed  beyond  the 
the  reach  of  the  creditor,  a  court  of  equity  has,  and  will,  exercise  the 
power  of  preventing  the  threatened  mischief  by  injunction.  76. 

3.  When  a  motion  to  dissolve  an  injunction  is  heard  on  bill  and  answer,  so 

much  of  the  bill  as  is  not  denied  by  the  answer,  is  taken  for  true,  and 
if  one  of  its  material  allegations  remain  unanswered,  the  injunction 
will  be  continued  till  the  final  hearing.  Ib. 

4.  An  injunction,  unless  issued  after  the  decree,  when  it  becomes  a  judi- 

cial process,  can  only  be  used  for  the  purpose  of  prevention  and  pro- 
tection, and  not  for  the  purpose  of  commanding  the  defendant  to  undo 
anything  he  had  previously  done.  Washington  University  of  Baltimore 
vs.  Green,  97. 

5.  The  bill  alleges  that  the  buildings  on  the  grounds  in  question,  were  used 

for  the  purpose  of  giving  medical  instruction,  and  as  an  infirmary  for 
the  sick,  by  the  professors  composing  the  medical  faculty  of  the  cor- 
poration, and  prays  that  the  defendant  may  be  restrained  from  so  act- 
ing as  to  interfere  with  their  possession  and  use  for  that  purpose,  and 
that  he  be  commanded  to  forbear  from  the  repetition  of  the  acts  which 
impeded  the  enjoyment  of  the  rights  and  the  discharge  of  the  duties 
on  the  part  of  the  professors.  HELD — 

That  an  injunction  of  this  description  cannot  be  regarded  as  going 
48* 


570  INDEX. 

INJUNCTION—  Continued. 

beyond  the  legitimate  office  of  the  process,  or  as  possessing  the 
character  of  a  judicial  writ.     Ib. 

6.  Where  the  material  allegations  of  the  bill  are  denied  by  the  answer,  the 

motion  to  dissolve  must  prevail,  unless  the  bill  can  be  supported  by 
testimony  taken  under  the  act  of  1835,  ch.  380,  sec.  8.  16. 

7.  All  averments  of  the  bill  not  denied  by  the  answer,  must,  upon  all  ques- 

tions relating  to  the  injunction,  be  regarded  as  true.    Ib. 

8.  An  injunction  can  only  be  dissolved  by  positive  contradictory  averments 

in  the  answer,  and  an  answer  founded  on  hearsay,  is  not  sufficient  to 
remove  the  complainant's  equity,  though  resting  upon  information  de- 
rived from  others,  it  denies  the  Tacts  out  of  which  that  equity  arose. 
Dmih  vs.  Barnes,  127. 

9.  Upon  motion  to  dissolve,  credit  can  only  be  given  to  the  answer,  in  so 

far  as  it  speaks  of  responsive  matters,  within  the  personal  knowledge 
of  the  defendant,  and  unless,  so  speaking,  the  equity  of  the  bill  is 
sworn  away,  the  injunction  cannot  be  dissolved.  Ib. 

10.  The  object  of  an  injunction  to  stay  proceedings  at  law,  either  before 
or  after  judgment,  is  to  prevent  the  party  against  whom  it  issues,  from 
availing  himself  of  an  unfair  advantage,  resulting  from  accident,  mis- 
take, fraud  or  otherwise,  and  which  would,  therefore,  be  against  con- 
science.    Little  vs.  Price,  182. 

11.  If  such  unfair  advantage  has  been  already  obtained  by  proceeding  to 
judgment,  the  court  will  in  like  manner  control  the  judgment,  and  re- 
store the  party  to  his  original  rights.    Ib. 

12.  This  can  only  be  done  by  depriving  his  adversary  of  every  advantage 

which  the  judgment  thus  improperly  obtained  gives  him,  and  cannot 
be  limited  merely  to  restraining  him  from  proceeding  upon  it  at  law. 
16. 

13.  Hence  an  injunction  commanding  and  enjoining  the  complainant  to 
cease  from  all  proceedings  on  his  judgment  recovered  at  law,  was 
held  to  operate  to  restrain  him  from  proceeding  in  equity.    76. 

14.  It  is  well  settled  by  the  Maryland  decisions,  that  chancery  will  never 
interfere  with  judgments  at  law,  where  the  party's  own  default  or  ne- 
glect has  made  an  application  to  the  latter  tribunal  necessary.    Ib. 

15.  When  the  company  refuses  or  neglects  to  pay  for  the  land  condemned 
for  their  use,  the  owner  has  a  right  to  call  upon  this  court  to  protect 
by  injunction  his  property  from  injury  until  the  money  is  paid.    Har- 
ness vs.  Chesapeake  and  Ohio  Canal  Company,  249. 

16.  The  power  of  this  court  to  grant  injunctions  to  restrain  creditors  from 
proceeding  at  law,  after  a  decree  for  an  account,  is  not  confined  to 
cases  in  which  the  application  is  made  by  the  executor  or  administra- 
tor, but  extends  to  applications  made  by  the  heir,  or  by  another  credi- 
tor, or  a  common  legatee,  or  perhaps  by  a  residuary  legatee.    Boyd  Sf 
/fence  vs.  Harris,  466. 

17.  In  order,  however,  to  prevent  abuse  by  conveyance  between  an  execu- 
tor or  administrator,  and  a  friendly  creditor,  the  practice  is  to  grant 
an  injunction  only  when  the  answer  or  affidavit  of  the  executor  or  ad- 


INDEX.  571 

INJUNCTION—  Continued. 

ministrator  states  the  amount  of  assets,  and  upon  the  terms  of  bringing 
the  assets  into  court,  or  obeying  such  other  order  of  the  court  as  the 
circumstances  of  the  case  may  require.  76.  • 

See  JURISDICTION,  8  to  12. 

LIMITATIONS,  STATUTES  OF,  5. 
MORTGAGOR  AND  MORTGAGEE,  4,  5. 
INSOLVENT  LAWS. 

1.  To  avoid  a  deed  under  the  acts  of  1812,  ch.  77,  and  1816,  ch.  221,  it  is 

necessary  to  show,  not  only  that  an  undue  aud  improper  preference 
was  given  by  the  debtor,  but  also,  that  it  was  done  with  a  view  and 
under  an  expectation  of  taking  the  benefit  of  the  insolvent  laws.  Glenn 
vs.  Baker,  73. 

2.  Such  intent  may  be  established  by  facts  and  circumstances  as  in  other 

cases,  and  the  fact  that  a  party,  when  Jie  executed  the  deed,  could 
not  apply  for  the  benefit  of  the  insolvent  laws,  for  want  of  the  resi- 
dence required  to  bring  him  within  their  provisions,  is  a  strong  cir- 
cumstance to  show  that  such  was  not  his  view  and  expectation  at 
that  time.  Ib. 
See  CONSTITUTIONAL  LAW,  11. 

DEEDS  VOID  UNDER  THE  INSOLVENT  LAWS. 
FOREIGN  CREDITORS. 
INTEREST  ON  LEGACY. 

1.  Where  no  time  is  fixed  by  the  will,  for  the  payment  of  a  legacy,  it  will 
bear  interest  from  the  expiration  of  one  year  after  the  death  of  the 
testator.     Grain  vs.  Barnes  &f  Fergusson,  152. 
JUDGMENTS  AT  LAW. 
See  INJUNCTION,  10  to  14. 

PRACTICE  IN  CHANCERY,  43. 
JUDGMENT  CREDITORS. 

1.  A  judgment  creditor,  not  a  party  to  a  suit,  is  not  bound  to  seek  payment 

out  of  the  proceeds  of  sales  in  the  hands  of  the  trustee,  but  may  pros- 
ecute his  lien  against  the  property,  after  its  conveyance  to  the  purcha- 
ser. Duvall  vs.  Speed,  229. 

2.  Where  a  party  holding  a  bond  of  conveyance  is  in  possession,  and  has 

paid  the  purchase  money  for  the  land,  the  court  will  direct  a  convey- 
ance, which  will  prevail  against  creditors,  whose  judgments  interven- 
ed between  the  equitable  title  of  the  bond  and  the  legal  title  by  the 
decree.     Brooks  vs.  Dent,  523. 
See  EQUITY  AND  EQUITABLE  DEFENCE. 

JUDGMNET  LIEN. 
JUDGMENT  LIEN. 

1.  Where  a  party  executing  a  deed  made  a  formal  proposition  to  his  cred- 

itors, in  writing,  which  some  of  them  accepting,  the  trust  was  created, 
and  upon  a  dividend  being  made,  a  creditor  received  from  the  trustees 
an  equal  share  with  the  rest,  such  creditor  must  be  considered  as  af- 
firming the  deed,  and  of  course  bound  by  it.  Doub  vs.  Barnes,  128. 

2.  But  where  a  deed,  in  which  all  legal  priorities  were  preserved,  was  ex- 


572  INDEX. 

JUDGMENT  LIEN— Continued. 

ecu  ted  without  any  proposition  made  to  creditors,  or  any  previous 
consultation  or  agreement  with  them,  a  creditor  by  receiving  money 
from  the  trustees  in  part  payment  of  his  judgment,  does  not  thereby 
render  the  provisions  of  the  deed  binding  upon  him,  nor  waive  the  lien 
of  his  judgment.  Ib. 

3.  A  judgment  rendered  in  one  of  the  County  Courts  of  this  state,  is  not  a  lien 

upon  lands  lying  in  another  county  until  the  plaintiff,  in  the  mode 
pointed  out  by  the  acts  of  1794,  ch.  54,  and  1795,  ch.  24,  has  transfer- 
red his  judgment  to  such  other  county.  Hayden  vs.  Stewart,  459. 

4.  Judgments  when  liens  at  all,  are  general  liens  upon  all  the  lands  of  the 

defendant,  continuing  for  twelve  years,  and  fasten  as  well  upon  those 
lands  which  the  defendant  held  at  the  time  of  their  rendition,  as  upon 
those  subsequently  acquired.    Ib. 
JURISDICTION. 

1.  The  allegations  of  the  bill  are,  that  forty-six  shares  of  the  stock  of  the 
Manhattan  Company  of  New  York,  were  transferred  to  the  defendant, 
Joseph  White,  in  trust  for  the  complainants,  prior  to  the  year  1839  ; 
that  in  January,  1840,  said  Joseph,  by  letter  of  attorney,  empowered 
Campbell  P.  White  to  .sell  and  transfer  said  shares  to  the  defendant, 
John  C.  White,  which,  in  January  and  February  of  the  same  year,  was 
accordingly  done.  That  said  defendant  knew  the  stock  was  trust  prop- 
erty, but  had  made  no  returns  of  the  proceeds  to  complainants, 
though  payment  was  duly  demanded  of  him.  The  bill  then  prays  that 
John  C.  White  may  account  for  the  sales  of  said  stock,  and  pay  over 
the  proceeds  thereof,  and  for  further  relief.  Upon  the  question  of 
jurisdiction  it  was  HELD —  ' 

That  whether  John  C.  White,  the  defendant,  is  himself  to  be  regard- 
ed as  the  purchaser  of  the  stock,  or  as  agent  to  sell  and  account 
for  the  same  to  the  plaintiffs,  the  remedy  at  law,  is,  in  either  as- 
pect, complete  and  ample,  without  the  aid  of  a  court  of  equity. 
White  vs.  White,  53. 

2:  There  can  be  no  doubt  that  where  a  husband  died  seized,  a  court  of  law 
has  full  power  to  compensate  the  widow,  in  damages  for  the  detention 
of  her  dower,  but  a  court  of  equity  alone  has  power  to  give  the  widow 
damages  for  the  detention  of  her  dower  as  against  the  alienee  of  her 
husband.  Kiddall  vs.  Trimble,  143. 

3.  The  jurisdiction  of  courts  of  equity  in  cases  of  dower,  is  cpncurrent 

with  that  of  courts  of  law,  and  if  the  legal  title  to  dower  be  admitted 
or  settled,  equity  will  proceed  to  the  assignment  of  the  dower,  and 
will  also  compensate  the  widow  in  damages  for  its  detention.  76. 

4.  A  proceeding  by  the  representatives  of  a  ward  against  the  executors  of 

a  guardian,  to  recover  a  legacy  bequeathed  to  the  ward,  and  which  the 
guardian  had  received  from  the  executors  of  the  testator  who  made 
the  bequest,  is  clearly  within  the  jurisdiction  of  a  court  of  equity. 
Grain  vs.  Fergusson,  151. 

5.  The  relation  of  guardian  and  ward,  and  the  rights  and  obligations  which 

grow  out  of  it,  are  peculiarly  within  the  jurisdiction  of  a  court  of 


INDEX.  573 

JURISDICTION—  Continued. 

equity,  and  its  power  to  afford  a  remedy  for  a  breach  of  this  trust 
cannot  be  questioned,  unless  it  has  been  taken  away  by  some  express 
statutory  enactment.  16. 

6.  Where  the  Court  of  Chancery  has  original  jurisdiction,  it  is  not  depriv- 

ed of  it  because  the  courts  of  law,  by  statutory  enactments,  may  have 
power  over  the  same  subject,  when  the  enactments  giving  them 
authority  contain  no  provisions  depriving  this  court  of  its  ancient  ju- 
risdiction. Ib. 

7.  The  Court  of  Chancery  has  no  jurisdiction  over  a  trustee  acting  under 

the  decree  of  a  court  of  concurrent  jurisdiction.  If  such  an  authority 
were  exercised  by  the  co-ordinate  equity  tribunals  of  the  state,  the  ut- 
most confusion  and  clashing  of  power  would  ensue.  Snyder  vs.  Snyder, 
295. 

8.  Courts  of  equity  will  interfere  by  injunction,  even  as  against  trespass- 

ers, if  the  acts  done  or  threatened  to  be  done  to  the  property  would 
be  ruinous  and  irremediable.  Georges  Creek  Coal  and  Iron  Company 
vs.  Delmold,  371. 

9.  But  an  injunction  is  not  granted  to  restrain  a  mere  transfer,  where  the 

injury  is  not  irreparable  and  destructive  to  the  plaintiff's  estate,  but  is 
susceptible  of  a  perfect  pecuniary  compensation,  and  for  which  the 
party  may  obtain  adequate  satisfaction  in  the  ordinary  course  of  law. 
Ib. 

10.  In  the  case  of  waste,  where  there  is  privity  of  title,  as  between  tenants 
for  life  and  the  reversioner,  it  is  not  necessary  for  the  plaintiff  to  show 
irreparable  injury  or  destruction  to  the  estate  to  entitle  him  to  the 
remedy  by|injunction.     16. 

11.  But  as  between  strangers  or  parties  claiming  adversely,  there  is  no  dis- 
tinction between   trespass  and  waste,  and  in  both  cases,  the   injury 
must  be  shown  to  be  irreparable  before  this  court  will  grant  an  in- 
junction.    76. 

12.  It  is  conclusively  settled,  that  a  court  of  equity  may  interfere  by  in- 
junction to  prevent  the  commission  of  waste.     Childs  vs.  Smith,  483. 

13.  The  objection  to  the  jurisdiction  of  the  Court  of  Chancery  to  stay  waste 
committed  by  adowress  on  her  dower  lands,  upon  the  ground  that  the 
remedy  should  be  sought  on  the  equity  side  of  the  County  Court  where 
the  proceedings  for  partition  were  had,  would  apply  with  equal  force 
to  every  application  to  enjoin  proceedings  upon  judgments  and  suits 
at  law  in  the  County  Courts,  and  is,  therefore,  untenable.     76. 

14.  In  the  case  of  misrepresentation,  if  facts,  whether  made  with  a  know- 
ledge of  their  untruth,  and  with  intent  to  defraud,  or  made  inadvertently 
by  mutual  mistake  of  parties,  or  by  mistake  of  either  of  them,  if  the 
other  has  been  prejudiced  thereby,  a  court  of  equity  has  jurisdiction 
and  will  set  aside  the  contract  and  declare  it  a  nullity.     Tbyinon  vs. 
Mitchell,  497. 

15.  A  court  of  equity  has  concurrent  jurisdiction  with  courts  of  law  in  all 
cases  of  fraud  and  damage,  and  it  makes  no  difference  that  the  sale 
sought  to  be  rescinded  on  the  ground  of  fraud,  was  a  sale  of  personal 
property.     16. 


574  INDEX. 

JURISDICTION—  Continued. 
See  APPEAL,  5. 

CONCURRENT  JURISDICTION.  . . 

GUARDIAN  AND  WARD. 
PRACTICE  IN  CHANCERY,  28. 
LIMITATIONS,  STATUTE  OF,  2. 
LANDLORD  AND  TENANT. 

See  CONSTITUTION  OF  STATUTES,  3. 
LAPSE  OF  TIME. 

1.  A  decree  or  order,  after  delay  or  lapse  of  time  cannot  be  set  aside,  ex- 

cept upon  very  strong  grounds.     Barry  vs.  Barry,  20. 

2.  The  order  sought  to  be  set  aside,  was  passed  on  the  18th  of  November, 

1844,  and  no  objection  is  made  until  August,  1846.  HELD — That  upon 
the  ground  of  delay  alone,  there  would  be  great  difficulty  in  granting  re- 
lief against  the  order,  even  if  the  merits  were  with  the  petitioner.  Ib. 

3.  A  proceeding  against  an  innocent  purchaser,  to  set  aside  a  patent,  forty- 

seven  years  after  its  date,  and  forty-five  years  after  the  patentee  had 
sold  and  conveyed  the  land  to  such  purchaser,  cannot  receive  the 
countenance  of  a  court  of  equity.  Buckingham  vs.  Dorsey,  31. 

4.  The  statute  of  limitations  does  not  apply  to  the  wife's  remedy  by  action, 

for  her  dower,  though  it  does  not  follow,  that  lapse  of  time  may  not 
operate  as  a  bar  to  a  bill  for  an  account.     Kiddall  vs.  Trimble,  144. 
LEASES. 

1.  A  lease  for  ninety-nine  years,  renewable  forever,  is  a  mere   chattel  in- 

terest, and  not  such  an  estate  in  lands,  from  which  dower  can  be 
claimed.  Spangler  vs.  Stanler,  36. 

2.  Leases  containing  covenants,  on  the  part  of  the  lessor,  to  convey  the 

fee  simple  to  the  lessee,  when  requested  so  to  do,  cannot  be  made  to 
operate  as  a  conveyance  by  lease  and  re-lease  at  common  law.     Ib. 
See  DOWER,  1.  3. 
LEGACY. 

See  INTEREST  ON  LEGACY. 

WILL  AND  TESTAMENT,  9. 
LIABILITY  OF  CORPORATIONS  ON  TRANSFERS  OF  THEIR  STOCK. 

1.  If  there  be  no  fraud  or  collusion,  the  bank  and  not  the  transferree  must 

abide  the  loss,  if  a  loss  be  sustained  by  any  act  of  the  proper  officer 
of  the  bank,  in  the  transfer  of  its  stock,  arising  either  from  a  miscon- 
ception of  his  duty  or  a  want  of  judgment.  Albert  and  wife  vs.  Sav- 
ings '  Bank,  407. 

2.  Where  the  entry  on  the  transfer  book,  displays  the  origin,  nature,  and 

character  of  the  trust,  and  who  were  the  beneficiaries,  it  was  HELD — 
That  the  bank  had  notice  of  the  trusts  witn  «vhich  the  stock  was 
clothed  and  would  be  responsible  if  it  permitted  a  transfer  to  be  made 
by  other  persons  than  the  trustees,  who  alone  were  authorized  to 
make  it.  16. 

3.  In  such  case,  if  the  trustees  themselves  should  offer  to  transfer,  under 

circumstances  calculated  to  excite  suspicion  that  they  were  about  to 
abuse  their  trust,  the  bank  would  be  bound  to  institute  the  necessary 


INDEX.  575 

LIABILITY  OF  CORPORATIONS,  &c.— Continued. 

inquiry,  and  if  it  omitted  to  do  so,  and  loss  resulted,  the  loss  would  be 
thrown  upon  it.  Ib. 

4.  Where  a  party  transfers  stock  as  "executor,"  the  bank  must  know  that 
there  is  a  will,  of  which,  in  Maryland,  it  is  bound  to  take  notice.  But 
where  the  entry  upon  the  books  of  a  corporation  only  showed  that  the 
stock  stood  in  the  name  of  certain  persons  as  trustees,  without  show- 
ing who  were  the  cestui  que  trusts,  or  what  the  nature  of  the  trust  was. 
It  was  HELD — That  this  entry  standing  by  itself  was  not  sufficient  to 
put  the  corporation  upon  the  inquiry,  and  to  make  it  responsible  on  the 
ground  of  negligence.  Ib. 
See  NOTICE  op  TRUST. 

LIEN. 

See  JUDGMENT  LIEN. 
MECHANICS'  LIEN. 
SEAMAN'S  WAGES. 
SPECIFIC  PERFORMANCE,  8. 
ATTORNEY,  1. 

LIFE  INSURANCE  POLICY. 
See  ASSIGNMENT,  1. 

LIMITATIONS,  STATUTE  OF. 

1.  The  transactions  out  of  which  the  claim  arose,  occurring  early  in  1840, 

and  the  bill  not  having  been  filed  until  January,  1846,  the  statute  of 
limitations  was  held  to  be  a  flat  bar  to  the  plaintiff's  right  to  recover. 
White  vs.  White,  53. 

2.  The  statute  of  limitations  does  not  apply  to  a  purely  technical  trust,  of 

which  a  Court  of  Chancery  has  exclusive  jurisdiction.     Ib. 

3.  If  the  relation  of  trustee  and  cestui  qui  trust  once  existed  between  these 

parties,  the  relation  terminated  as  soon  as  the  stock  was  sold,  and  the 
obligation  to  pay  over  the  proceeds  supervened,  and  then  the  right  of 
action  accrued,  and  limitations  began  to  run.  Ib. 

4.  The  statute  of  limitations  does  not  apply  to  the  wife's  remedy  by  action 

for  her  dower,  though  it  does  not  follow  that  lapse  of  time  may  not 
operate  as  a  bar  to  a  bill  for  an  account.  Kiddall  vs.  Trimble,  144. 

5.  The  running  of  the  act  of  limitations  is  suspended  by  an   injunction. 

Little  vs.  Price,  182. 

6.  When  limitations  are  relied  upon,  the  defence  avails  only  in  favor  of 

the  parties  who  set  it  up.     Dixon  vs.  Dixon,  271. 
See  LAPSE  OF  TIME,  4. 
MACHINERY. 

See  MECHANICS'  LIEN,  4. 
MANUMISSION. 

1.  The  whole  of  the  testator's  property,  will,  in  equity,  be  charged  with  the 
payment  of  his  debts,  in  favor  of  his  manumitted  slaves,  and  in  a  ju- 
dicial proceeding  to  determine  the  invalidity  of  a  deed  of  manumission 
as  being  in  prejudice  of  creditors,  the  negro  manumitted  is  entitled  to 
the  assistance  of  the  heir  at  law,  or  the  person  holding  the  real  estate, 
in  taking  an  account  of  the  amount  thereof,  before  the  insolvency  of 


576  INDEX. 

MANUMISSION—  Continued. 

the  deceased  manumittor  can  be  legally  ascertained.  Thomas  vs. 
Wood,  297. 

2.  With  regard  to  the  manumittor  himself  and  his  legal  representatives, 
the  manumission,  though  in  prejudice  of  creditors,  is   valid,  and  the 
negroes  manumitted  are  not  assets  for  the  payment  of  debts.     16. 
MARITAL  RIGHTS. 

See  MARRIAGE  SETTLEMENT. 
MARRIAGE  SETTLEMENT. 

1.  By  a  marriage  settlement,  the  property  of  the  wife  was  conveyed  to 

trustees  for  the  benefit  of  the  wife  during  coverture,  free  from  the  con- 
trol, and  not  liable  for  the  debts  of  [her  husband,  with  power  to  the 
wife  to  dispose  of  the  same,  either  by  last  will  and  testament,  in  writ- 
ing, or  by  any  other  writing,  signed  by  her  hand,  in  the  presence  of  two 
witnesses.  The  wife  died  without  making  any  disposition  whatever 
of  the  property,  it  was  HELD — 

That  the  contract  did  nothing  more  than  suspend  the  marital  rights 
of  the  husband  during  the  life  of  the  wife,  and  upon  her  death 
the  property  remained  precisely  in  the  same  condition  it  would 
have  been  in,  if  no  such  power  of  appointment  had  been  created, 
and  consequently  the  rights  of  the  husband  revived  upon  her 
death.  Jones  8f  White  vs.  Brown  et  al.,  191. 

2.  When  it  is  intended,  in  a  marriage  settlement,  to  exclude  the  rights  of 

the  husband  to  the  personal  property  of  the  wife,  in  the  event  of  his 
surviving  her,  and  in  default  of  her  appointment,  an  express  provision  to 
that  effect  should  be  inserted.  16. 

3.  When  the  settlement  makes  no  disposition  of  the  property  in  the  event 

of  the  wife's  death,  and  provides  only  for  her  dominion  over  it  during 
coverture,  the  right  of  the  husband  as  survivor,  is  a  fixed  and  stable 
right,  over  which  the  court  has  no  control  and  of  which  he  cannot  be 
divested.  76. 

4.  A  settlement  upon   the  wife  after  marriage,  in  pursuance  of  a  valid 

agreement  before  marriage,  is  good  and  binding  against  the  creditors 
of  the  husband.  Brooks  vs.  Dent,  523. 

See  TRUSTEES,  THEIR  DUTIES  AND  POWERS,  3. 
MARRIED  WOMEN,  CHARGING  SEPARATE  ESTATE  OF,  &c. 

Before  the  separate  estate  of  a  married  woman  can  be  charged  for  her  en- 
gagements, it  must  be  shown  that  her  contract  was  made  with  direct 
reference  to  such  separate  estate  ;  and  she  is  not  to  be  regarded  with 
respect  to  such  estate  as  a  feme  sole,  to  all  intents  and  purposes,  and 
bound  by  any  form  of  contract  into  which  she  may  please  to  enter, 
whether  made  with  reference  to  such  estate  or  not.  Conn  vs.  Conn, 
212. 
MARSHALING  ASSETS. 

In  marshaling  assets,  lands  descended  are  to  be  applied  before  lands  de- 
vised.   Brooks  vs.  Dent,  523. 


INDEX.  577 

MECHANICS'  LIEN. 

1.  The  law  relating  to  the  lien  of  mechanics  and  others  upon  buildings, 

only  prefers  such  lien  to  every  other  lien  or  incumbrance,  which  at- 
tached upon  the  building  subsequent  to  the  commencement  of  the  same. 
Jones  vs.  Hancock,  187. 

2.  If  there  be  liens  on  the  property  prior  to  the  commencement  of  the  build- 

ing upon  which  the  work  is  done,  or  for  which  the  materials  are  found, 
the  lien  for  work  and  materials  must  be  postponed  to  such  prior  in- 
cumbrance. 76.  188. 

3.  The  act  of  1845,  ch.  287,  sec.  4,  gives  no  right  to  a  party  to  enforce  this 

lien  upon  the  proceeds  of  sales  of  machinery.     Ib. 

4.  Though  a  party  having  a  lien  on  a  building,  for  work  and  materials,  may 

come  into  a  court  of  law  or  equity  for  his  share  of  the  proceeds  of  a 
sale  made  under  its  authority,  no  such  right  is  given  when  such  pro- 
ceeds arise  from  the  sale  of  machinery.  76. 

MERGER. 

1.  If  the  inquisition  of  the  jury  when  returned  to,  and  affirmed  by,  the  court, 
under  the  act  of  1824,  ch.  79,  sec.  15,  constitutes  a  debt  at  all,  it  is  a 
debt  of  record,  and  of  an  equal  grade  with  a  judgment,  and,  therefore, 
not  merged  by  it.  Harness  vs.  Chesapeake  and  Ohio  Canal  Co.,  248. 

MIS  JOINDER  OF  PLAINTIFFS. 
See  PRACTICE  IN  CHANCERY,  13. 

MISTAKE. 

1.  Before  a  party  can  be  relieved  in  the  case  of  a  written  contract  upon 

the  ground  of  mistake,  the  evidence  of  mistake  must  be  clear  and  sat- 
isfactory, and  if  any  reasonable  doubt  can  be  entertained  on  the  sub- 
ject, relief  will  be  refused.  Goldsborough  vs.  Ringgold,  239. 

2.  The  mistake  sought  to  be  rectified,  was  in  regard  to  the  number  of  acres 

sold  under  the  decree.  The  only  evidence  was  found  in  a  survey  or- 
dered by  the  court,  upon  the  exparte  application  of  the  petitioner, 
which  differed  from  the  survey  according  to  which  the  land  was  sold. 
It  was  HELD — That  this  evidence  was  not  sufficient  to  overthrow  the 
contract  on  the  ground  of  mistake.  76. 
See  JURISDICTION,  14. 

MORTGAGE. 

1.  A  bill  of  sale  though  absolute  in  its  terms,  is,  in  equity,  considered  as  a 

mortgage  whenever  the  object  is  to  secure  the  payment  of  a  debt,  and 
not  to  transfer  the  title  to  the  party  to  whom  the  conveyance  is  made. 
Clark  vs.  Levering,  178. 

2.  A  mortgage  debt  must  be  paid  out  of  the  personal  estate  of  the  mort- 

gagor, and  if  that  is  not  adequate,  then  the  balance  should  be  paid  out 
of  that  portion  of  the  real  estate  contained  in  the  mortgage.  Goodburn 
vs.  Stevens,  420. 

3.  No  matter  how  absolute  a  conveyance  may  be  on  its  face,  if  the  inten- 

tion is  to  take  a  security  for  a  subsisting  debt,  or  for  money  lent,  the 
transaction  will  be  regarded  as  a  mortgage  and  will  be  treated  as  such. 
Bank  qf  Westminster  vs.  White,  536. 
VOL.  I 49 


578  INDEX. 

MORTGAGE—  Continued. 

See  MORTGAGOR  AND  MORTGAGEE. 

ASSIGNMENT,  3,  4. 
MORTGAGEE  AND  MORTGAGOR. 

1.  In  Maryland,  unless  there  is  some  agreement  of  the  parties  to  the  con- 

trary, the  mortgagee  is  entitled  to  the  possession  of  the  property,  im- 
mediately upon  the  execution  of  the  mortgage,  without  regard  to 
whether  there  has  been  a  forfeiture  or  not.  Brown  vs.  Stewart,  87. 

2.  But  because  the  mortgagee  may  take  possession  of  the  property,  or  re- 

cover it  by  an  action  of  replevin,  he  is  not,  on  this  account,  precluded 
from  the  right  of  having  it  protected  in  a  court  of  equity.  Ib. 

3.  The  case  of  a  mortgage  forms  an  exception  to  the  general  rule  that  a 

party  shall  not  be  allowed  to  sue  at  law  and  in  equity  for  the  same 
debt,  and  a  mortgagee  may  pursue  all  his  remedies  at  once,  yet  he  is 
under  no  obligation  to  do  so.  Ib. 

4.  If  a  mortgagor  is  in  possession  committing  waste,  equity  will  restrain 

him  by  injunction.     76. 

5.  Where  a  mortgagee  files  a  bill  for  the  sale  of  the  mortgaged  property, 

for  the  satisfaction  of  the  debt  then  due,  and  alleges  that  it  being  in 
the  possession  of  the  mortgagor,  has  been,  or  is  about  to  be,  wasted  ; 
or  where  it  consists  of  personalty,  is  about  to  be  removed  beyond  the 
reach  of  the  creditor,  a  court  of  equity  has,  and  will,  exercise  the 
power  of  preventing  the  threatened  mischief  by  injunction.  Ib. 

6.  When  mortgaged  property  has  been  turned  into  money,  the  rights  of  the 

mortgagee  remain  unaltered  by  the  conversion,  and  he  has  a  right  to 
have  the  money  applied  to  the  payment  of  his  claim.  76. 

7.  Whoever  may  be  the  holder  of  the  debt  intended  to  be  secured  by  the 

mortgage,  will  be  considered  in  equity  as  the  owner  of  the  mortgage 
itself.  Clark  vs.  Levering,  178. 

8.  A  mortgagee  having  given  notice  to  the  tenants  holding  the  mortgaged 

premises  under  leases  granted  by  the  mortgagor,  either  before  or  after 
the  date  of  the  mortgage,  is  entitled  to  receive  from  the  tenants,  the 
rents  in  arrear  at  the  time  of  the  notice,  as  well  as  those  which  accrue 
afterwards.     Clark  vs.  Abbott,  474. 
MULTIFARIOUSNESS. 

See  PRACTICE  IN  CHANCERY,  12. 
MUTUALITY. 

See  SPECIFIC  PERFORMANCE,  3,  4,  12. 
NOTICE. 

See  PARTITION,  6. 

NOTICE  OF  TRUST. 
NOTICE  OF  TRUST. 

1.  Where  the  entry,  on  the  transfer  book  of  a  bank,  displayed  the  origin, 
nature  and  character  of  the  trust,  and  who  were  the  beneficiaries,  it 
was  HELD — That  the  bank  had  notice  of  the  trusts  with  which  the 
stock  was  clothed,  and  would  be  responsible,  if  it  permitted  a  transfer 
to  be  made  by  any  other  persons  than  the  trustees,  who  alone  were 
authorized  to  make  it.  Albert  and  wife  vs.  Savings  Bank,  407. 


INDEX.  579 

NOTICE  OF  TRUSTS— Continued. 

2.  In  such  case,  if  the  trustees  themselves  should  offer  to  transfer,  under 

circumstances  calculated  to  excite  suspicion  that  they  were  about  to 
abuse  their  trust,  the  bank  would  be  bound  to  institute  the  necessary 
inquiry,  and  if  it  omitted  to  do  so,  and  loss  resulted,  the  loss  would  be 
thrown  upon  it.  76. 

3.  Where  a  party  transfers  stock  as  "executor,"  the  bank  must  know  that 

there  is  a  will,  of  which,  in  Maryland,  it  is  bound  to  take  notice. 
But  where  the  entry  upon  the  books  of  a  corporation  only  showed  that 
the  stock  stood  in  the  name  of  certain  persons,  as  trustees,  without 
showing  who  were  the  certuis  que  trusts,  or  what  the  nature  of  the  trust 
was,  it  was  HELD — That  this  entry,  standing  by  itself,  was  not  suf- 
ficient to  put  the  corporation  upon  the  inquiry,  and  to  make  it  respon- 
sible on  the  ground  of  negligence.     Ib. 
See  PURCHASERS,  3. 
NOTICE  OF  A  WILL. 

See  LIABILITY  OF  CORPORATIONS  ON  TRANSFERS  OF  THEIR  STOCK,  4. 
OBJECTIONS  TO  SALES. 

See  SALES  OF  TRUSTEES,  13. 
OBLIGOR  AND  OBLIGEE. 
See  ASSIGNMENT,  2. 

CONTRIBUTION  AMONG  JOINT  OBLIGORS. 
OWNERS  OF  VESSELS,  THEIR  LIABILITY  FOR  SUPPLIES. 

1.  The  owner  is  liable  for  the  necessary  supplies  for  the  vessel  furnished 

by  order  of  the  master,  and  if  he  seeks  to  escape  such  liability,  he 
must  show,  by  satisfactory  proof,  that  the  credit  was  given  to  others. 
Abbott  vs.  Steam  Packet  Co.,  542. 

2.  If  the  owner  can  make  out,  by  evidence,  that  the  credit  was  given  to 

the  master  alone  for  such  supplies,  if  it  appears  that  there  was  a  spe- 
cial promise  taken  from  him  and  relied  upon,  the  owner  will  not  be 
liable.     Ib. 
PAROL  AGREEMENT  RESPECTING  LANDS. 

See  PART  PERFORMANCE,  9,  10. 
PAROL  EVIDENCE  TO  CONTRADICT  A  RECEIPT  IN  A  DEED. 

It  is  the   undisputed  law  of  this  state  that  a  receipt  in  a  deed  acknow- 
ledging the  payment  of  the  consideration  money,  is  only  prima  fade 
proof,  and  may  be  contradicted  or  explained  by  parol  evidence.     Elys- 
ville  Manufacturing  Co.  vs.  Okisko  Co.,  392. 
PAROL  PROOF. 

See  EVIDENCE,  11  to  13. 

HUSBAND  AND  WIFE,  2. 
PARTIES  TO  SUITS. 

See  PRACTICE  IN  CHANCERY,  20,  25. 
PARTITION. 

1.  An  objection  to  a  return  made  upon  a  commission  to  make  partition, 
that  the  commissioners  did  not  distribute  the  estate  by  lot,  but  at  their 
own  discretion  assigned  their  several  shares  to  the  parties  interested, 
cannot  be  sustained  either  by  the  practice  of  the  court,  the  act  of  as- 
sembly, or  the  rule  of  the  English  Court  of  Chancery  in  similar  cases 
Cecil  vs.  Dorsey,  223. 


580  INDEX. 

PARTITION— Continued. 

2.  When  partition  is  made  by  agreement  of  parties,  one  of  the  modes 

known  to  the  common  law,  is,  by  drawing  lots,  but  there  is  no  authori- 
ty for  saying,  that  when  a  compulsory  partition  is  made  by  judicial 
process,  recourse  must  be  had  to  lots  to  determine  the  portion  which 
each  party  is  to  take.  Ib. 

3.  The  legislature  did  not  mean  to  confine  the  commissioners  to  a  particu- 

lar mode  of  making  the  partition,  they  may,  if  they  please,  award  to 
each  of  the  parties  his  share  of  the  thing  to  be  divided,  or  they  may  at 
the  proper  stage  of  the  proceedings  draw  lots,  and  their  return,  other- 
wise unexceptionable ,  will  not  be  set  aside  because  they  have  adopted 
either  of  these  modes.  Lb. 

4.  It  is  a  fatal  objection  to  the  return,  that  the  value  of  the  estate,  in 

money,  has  not  been  stated  by  the  commissioners.     Ib. 

5.  The  clause  directing  the  commissioners  to  take  evidence,  should  be 

added  to  the  form  of  the  commission.     Ib. 

6.  The  act  of  assembly  requiring  thirty  days  notice  of  the  execution  of  the 

commission  to  be  given,  is  not  complied  with,  by  stating,  in  the  return, 
that  reasonable  notice  was  given,  but  the  commissioners  must  say,  in 
their  return,  either  that  they  gave  thirty  days  notice,  or  due  notice 
according  to  law.     76. 
PARTNERSHIP  AND  PARTNERS. 

1.  When  one  of  several  partners  dies,  if  the  surviving  partners  continue 

the  trade  or  business,  it  is  at  their  own  risk,  and  they  will  be  liable,  at 
the  option  of  the  deceased  partners,  to  account  for  the  profits  made 
thereby,  or  to  be  charged  with  interest  on  the  deceased  partner's  share 
of  the  surplus,  besides  bearing  all  losses.  Goodburn  and  wi/evs.  Ste- 
vens, 420. 

2.  The  real  estate  of  a  partnership,  though  regarded   in  a  court  of  equity 

as  personal  estate  for  all  partnership  purposes,  yet,  in  the  absence  of 
an  express  or  implied  agreement  indicating  an  intention  to  convert  it 
into  personal  estate,  will,  when  the  claims  against  the  partnership 
have  been  satisfied,  and  the  partnership  accounts  adjusted,  be  treated  in 
a  court  of  equity  as  at  law,  as  real  estate,  and  be  subject  to  the  dower 
of  the  widow  of  a  deceased  partner.  76. 

3.  By  one  of  the  articles  of  a  partnership  agreement,  a  partner  bound  him- 

self "not  to  take  out  of  the  business  or  stock  in  trade"  of  the  partner- 
ship "more  than  seven  hundred  dollars  per  annum,  in  goods  or  money, 
or  both."  HELD — 

That  this  article  could  not  be  construed  as  an  agreement  that  this 
partner  should  have  a  salary  of  seven  hundred  dollars  in  consider- 
ation of  his  giving  his  attention  to  the  business  of  the  firm.  Balt- 
zel  vs.  Trump,  517. 

4.  That  by  this  article  he  was  restricted  from  taking  more  than  seven  hun- 

dred dollars,  but  he  might  take  less,  and  if  he  should  take   less,  he 
would  not  be  entitled  to  have  the  difference  made  up,  upon  the  expi- 
ration of  the  partnership.     Ib. 
See  DOWER,  17. 
ELECTION,  2. 


INDEX.  581 

PART  PERFORMANCE. 

1.  There  can  be  no  doubt  that  if  a  party  has  succeeded  in  proving  a  con- 

tract, and  in  showing  that  it  has  been  in  part  performed, he  is  entitled 
to  have  it  specifically  executed.  Owings  vs.  Baldwin  8f  Wheeler,  120. 

2.  This  right  is  founded,  not  upon  the  notion  that  part  performance  is  a 

compliance  with  the  statute  of  frauds,  but  upon  the  ground  that  it 
takes  the  case  entirely  out  of  the  statute.  Ib. 

3.  In  order  to  take  a  case  out  of  the  statute,  on  the  ground  of  part  per- 

formance, the  plaintiff  must  make  out  by  clear  and  satisfactory  proof, 
the  existence  of  the  contract  as  laid  in  the  bill,  and  the  act  of  part 
performance  must  be  of  the  identical  contract  set  up.  Ib.  Beard  vs. 
Linthicum,  345. 

4.  It  is  not  enough  that  the  act  is  evidence  of  some  agreement,  but  it  must 

be  unequivocal  and  satisfactory  evidence  of  the  particular  agreement 
charged  in  the  bill.  Beard  vs.  Linthicum,  345. 

5.  Where  delivery  of  possession  is  relied  upon,  it  is  indispensable  that  such 

delivery  to,  and  taking  possession  by,  the  defendant,  is  referrible  to  the 
contract  alleged  in  the  bill,  and  not  to  a  distinct  or  different  title.  B>.  '• 

6.  To  take  a  parol  agreement  out  of  the  statute  of  frauds,  on  the  ground  of 

part  performance,  the  acts  done  in  part  performance  must  not  only  be 
referrible  exclusively  to  the  contract  setup  in  the  bill,  but  the  contract 
itself  must  be  established  by  evidence,  clear,  definite  and  unequivocal 
in  its  terms.  Shepherd  vs.  Shepherd,  244. 

7.  The  party  must  show  acts  unequivocally  referring  to  and  resulting  from 

the  agreement  set  up,  such  as  the  party  would  not  have  done  unless  on 
account  of  that  very  agreement,  and  with  a  view  to  its  performance  ; 
and  the  agreement  set  up,  must  appear  to  be  the  same  with  the  one 
partly  performed.  Ib. 

8.  The  Chancellor  refused  to  decree  the  execution  of  the  contract  set  up 

in  this  case,  because  there  was  a  want  of  the  essential  element  of  un- 
equivocal certainty  in  the  agreement,  and  in  the  acts  relied  upon  as 
part  performance.  Ib. 

9.  The  ground  upon  which  a  court  of  equity  decrees  the  specific  perform- 

ance of  a  parol  agreement  respecting  lands,  is,  that  in  case  of  a  clear 
part  performance  by  one  party,  it  would  be  a  fraud  in  the  other  to  re- 
fuse to  perform  the  agreement  on  his  part.  It  would  be  perverting 
the  statute  from  a  shield  against,  into  an  instrument  of,  fraud.  Small 
vs.  Owings,  363. 

10.  When  acts  of  part  performance  are  relied  upon  to  take  a  parol  agree- 
ment for  the  sale  of  lands  (when  denied  by  the  answer)  out  of  the 
operation  of  the  statute  of  frauds,  full  and  satisfactory  evidence  must 
be  offered  of  the  terms  of  the  agreement,  and  of  the  performance  of  it  on 
the  part  of  the  complainant.     Ib. 

See  PRACTICE  IN  CHANCERY,  23. 
PATENTS. 

1.  A  warrant  of  resurvey  does  not  authorize  a  party  to  include  a  vacancy 
not  contiguous  to  the  tract  or  tracts  to  be  resurveyed.  And  a  person 
who  has  not  a  title  to  the  land  on  which  he  obtains  a  warrant  of  re- 

49* 


582  INDEX. 

PATENTS— Continued. 

survey,  does  not,  in  virtue  of  such  warrant,  acquire  a  right  of  pre- 
emption in  the  adjoining  vacancy.     Buckingham  vs.  Dorsey,  31. 
2.  Yet  patents  obtained  by  a  party  who  has  no  legal  title  to  the  original, 
or  upon  a  certificate  of  resurvey,  including  vacancy  not  contiguous  to 
the  original,  will  not  be  vacated,  except  for  fraud,  in  fact,  alleged  and 
proved,  though  upon  a  caveat  filed  in  the  land  office,  they  would  have 
been  refused .     Ib. 
PAYMENTS. 

See  EVIDENCE,  6. 

APPLICATION  OF  PAYMENTS,  1  to  4. 
PERSONAL  PROPERTY. 

See  SPECIFIC  PERFORMANCE,  8  to  10. 

WOOD  CUT  NOT  REALTY. 
PETITION. 

See  CHANCERY  PRA.CTICE,  3,  39,  45. 
PLEADINGS. 

1.  The  principles  that  regulate  equity  pleadings  will  admit  a  different  in- 

terpretation to  be  put  upon  a  particular  sentence  than  would  be  re- 
quired by  grammatical  rule.  Small  vs.  Oivings,  363. 

2.  The  complainant  cannot  rely  upon  the  admissions  of  the  answer,  and 

obtain  relief  upon  those  admissions  unless  he  has  set  them  out  in  his 
bill.  76. 

3.  A  complainant  in  his  bill  must  put  in  issue  whatever  he  intends  proving, 

otherwise  the  evidence  will  be  excluded.     The  Court  of  Chancery  de- 
crees only  secundum  allegata  et  probata.     Ib. 
See  PRACTICE  IN  CHANCERY. 
POSTHUMOUS  CHILDREN. 

1.  Courts  of  equity  will  use  all  possible  ingenuity  to  construe  testamentary 

expressions  in  such  a  manner  as  to  include  all  children  living  at  the 
testator's  death,  and  a  child  inventre  sa  mere,  is  considered  as  living  at 
that  time.  Conn  vs.  Conn,  212. 

2.  When  the  testator  stands  in  the  relation  of  parent  to  the  legatees,  a 

court  of  equity  will  lay  hold  of  any  general  expression  which  will  in- 
clude all  the  children,  though  it  may  be  apparent  from  the  context 
that  only  children  in  existence  when  the  will  was  made,  were  within 
the  contemplation  of  the  testator.  Ib. 

3.  Yet  when  it  is  evident  that  the  testator  really  forgot  that  other  children 

might  be  born  to  him,  and  has,  upon  the  face  of  the  instrument,  made 
provision  for  only  such  as  were  living  at  the  date  of  the  will,  it  is  im- 
possible to  supply  the  defect,  and  give  such  after  born  children  any 
provision,  notwithstanding  the  anxiety  of  the  court  to  do  so.  Ib. 

4.  Where  the  testator  has  described  the  children  by  name,  among  whom  the 

estate  is  to  be  divided,  upon  the  happening  of  a  contingency,  it  is  im- 
possible to  bring  a  posthumous  child  within  the  description.    Ib. 
POUNDAGE  FEES. 

1.  As  a  general  rule,  the  defendant,  and  not  the  plaintiff,  is  answerable  for 
poundage  fees.     Gilmor  vs.  Brien,  40. 


INDEX.  583 

POUNDAGE  FEES—  Continued. 

2.  If  an  execution  issue  irregularly,  that  being  the  act  of  the  plaintiff,  he, 

and  not  the  defendant,  will  be  liable  to  the  sheriff  for  poundage  fees, 
but  if  an  execution  be  stayed  by  injunction,  the  defendant  is  liable.  Ib. 

3.  The  claim  of  a  sheriff  for  poundage  fees  is  a  legal,  and  not  an  equitable, 

claim,  and  its  payment  must  be  enforced  by  a  proceeding  at  law.     Ib. 

4.  An  agreement  by  an  assignee  of  certain  judgments,  to  pay  all  legal  costs 

arising  thereon,  was  held  not  to  impose  an  obligation  on  him  to  pay 
poundage  fees.     76. 
PRACTICE  IN  CHANCERY. 

1.  The  enrollment  of  a  decree  obtained  by  surprise,  may  be  vacated  either 

upon  a  bill  or  petition.     Barry  vs.  Barry,  20. 

2.  Where  a  case  is  set  down  for  hearing  on  bill  and  answer,  all  the  aver- 

ments of  the  latter,  whether  responsive  or  not,  to  the  allegations  of  the 
bill,  are  taken  to  be  true.  Wheeler's  Estate,  80. 

3.  The  case  of  a  mortgage  forms  an  exception  to  the  general  rule,  that  a 

party  shall  not  be  allowed  to  sue  at  law  and  in  equity  for  the  same  debt, 
and  a  mortgagee  may  pursue  all  his  remedies  at  once,  yet  he  is  under  no 
obligation  to  do  so.  Brown  vs.  Stewart,  87. 

4.  When  a  motion  to  dissolve  an  injunction  is  heard  on  bill  and  answer,  so 

much  of  the  bill  as  is  not  denied  by  the  answer,  is  taken  for  true ;  and  if 
any  one  of  its  material  allegations  remains  unanswered,  the  injunction 
will  be  continued  till  the  final  hearing.  Ib. 

5.  Allowing  a  demurrer  to  a  whole  bill,  in  strictness,  puts  it  out  of  court, 

and  no  subsequent  proceedings  can  be  taken  in  the  cause.  Yet  the 
court  has  sometimes  permitted  an  amendment  of  the  bill  to  be  made. 
Cullison  vs.  Bossom,  95. 

6.  Where  the  material  allegations  of  the  bill  are  denied  by  the  answer,  the 

motion  to  dissolve  must  prevail,  unless  the  bill  can  be  supported  by  tes- 
timony taken  under  the  act  of  1835,  ch.  380,  sec.  8.  Washington  Uni- 
versity of  Baltimore  vs.  Green,  97. 

7.  All  averments  of  the  bill  not  denied  by  the  answer,  must,  upon  all  ques- 

tions relating  to  the  injunction,  be  regarded  as  true.     Ib. 

8.  After  the  injunction  was  dissolved,  the  defendant  filed  a  petition,  stating 

that  the  complainants,  in  pursuance  of  the  injunction,  had  taken  posses- 
sion of  the  property,  to  which  the  defendant  yielded,  and  praying  that 
an  order  may  be  passed  restoring  the  possession  to  the  defendant. 
HELD — 

That,  if  the  defendant  has  surrendered  a  possession  previously  held 
by  him,  he  has  done  that  which  the  Court,  by  its  injunction,  did 
not  command  him  to  do,  and  for  which  he  has  no  right  to  ask  for 
redress  at  its  hands,  and  that  the  petition  should  be  dismissed.  Ib. 

9.  An  injunction  can  only  be  dissolved  by  positive  contradictory  averments 

in  the  answer,  and  an  answer  founded  upon  hearsay  is  not  sufficient  to 
remove  the  complainant's  equity,  though,  resting  upon  information  de- 
rived from  others,  it  denies  the  facts  out  of  which  that  equity  arose. 
Doub  vs.  Barnes,  127. 


584  INDEX. 

PRACTICE  IN  CHANCERY— Continued. 

10.  Upon  motion  to  dissolve,  credit  can  only  be  given  to  the  answer,  in  so  far 

as  it  speaks  of  responsive  matters,  within  the  personal  knowledge  of  the 
defendant,  and  unless  so  speaking,  the  equity  of  the  bill  is  sworn  away, 
the  injunction  cannot  be  dissolved.  76. 

11.  Although  an  answer  founded  upon  hearsay  is  not  to  be  treated  as  an  an- 

swer resting  upon  personal  knowledge,  it  is  sufficient  to  put  the  com- 
plainant upon  proof  of  the  averments  of  his  bill.  Ib. 

12.  Where  an  original  and  amended  bill  merely  unite  two  causes  of  complaint 

growing  out  of  the  same  transaction,  affecting  the  same  question  of  right, 
being  the  right  of  the  complainant  to  relief  against  the  judgment  of  the 
defendant,  they  cannot  be  regarded  as  obnoxious  to  the  objection  of 
multifariousness.  16. 

13.  It  is  too  late  to  urge  the  objection  of  misjoinder  of  plaintiffs,  when  the  case 

is  ready  for  decision  upon  its  merits,  when  there  is  no  demurrer  and  the 
answer  takes  no  such  defence.  Grain  vs.  Barnes  Sf  Fergusson,  151. 

14.  Courts  of  equity  are  not  subject  to  those  strict  technical  rules  which,  in 

other  courts,  are  sometimes  found  in  the  way  and  difficult  to  surmount. 
The  remedies  here  are  moulded  so  as  to  reach  the  real  merits  of  the  con- 
troversy, and  justice  will  not  be  suffered  to  be  entangled  in  a  web  of  tech- 
nicalities. 16. 

15.  The  omission  of  the  prayer  for  the  specific  relief,  is  no  reason  why,  under 

the  general  prayer,  the  complainants  may  not  have  such  relief  as  the  case 
alleged  and  proved  may  entitle  them  to.  16. 

16.  The  only  limitation  upon  the  power  of  the  court  to  grant  relief  under  the 

general  prayer,  is,  that  it  must  be  agreeable  to  the  case  made  by  the  bill, 
and  not  different  from  or  inconsistent  with  it.  16. 

17.  It  is  a  fatal  objection  to  the  return  of  a  commission  to  make  partition, 

that  the  value  of  the  estate  in  writing,  has  not  been  stated  by  the  com- 
missioners. Cecil  vs.  Dorsey,  223. 

18.  The  clause  directing  the  commissioners  to  take   evidence,  should  be 

added  to  the  form  of  the  commission.     16. 

19.  The  act  of  assembly  requiring  thirty  days  notice  to  be  given  of  the  exe- 

cution of  the  commission,  is  not  complied  with,  by  stating  in  the  return 
that  reasonable  notice  was  given  ;  but  the  conmmissioners  must  say  in 
their  return,  either  that  they  gave  at  least  thirty  days  notice,  or  due 
notice  according  to  law.  16. 

20.  The  fact  that  the  trustee  of  an  insolvent  debtor  was  a  party  to  the  suit, 

does  not  dispense  with  the  necessity  of  making  the  creditors  themselves 
parties.  Duvall  vs.  Speed,  229. 

21.  Where  a  claim  has   been  submitted  to,  and   adjudicated  upon  by  the 

court,  and  finally  rejected  through  the  negligence  of  its  owner.  He 
will  not  be  allowed  to  re-open  the  judgment  of  the  court,  and  ask  for 
and  obtain  a  re-hearing  upon  additional  proof.  Dixon  vs.  Dixon,  271. 

22.  But  where  no  adjudication  has  been  had  upon  the   claim,  and  the  fund 

for  distribution  remains  in  court,  equity  requires  that  the  new  proof 
should  be  considered,  and  if  found  sufficient  to  remove  the  objection 
to  it,  the  claim  should  be  allowed.  Ib. 


INDEX  585 

PRACTICE  IN  CHANCERY— Continued. 

23.  When  funds  are  in  this  court  for  distribution  among  creditors,  and  the 
Auditor  reports  that  certain  claims  have  not  been  proved,  or  objec- 
tions for  want  of  proof  are  made  to  their  allowance  by  parties  inter- 
ested, the  case  is  again  referred  to  the  Auditor,  with  directions  to  state 
a  final  account,  from  which  all  claims,  not  then  sufficiently  proved,  are 
to  be  excluded,  and  leave  is  given  to  supply  the  proof  upon  such  terms, 
as  to  notices,  as  may  be  deemed  reasonable.    Upon  the  coming  in  of 
the  report  of  the  Auditor,  made  pursuant  to  this  order,  and  after  the 
usual  time  given  for  filing  exceptions,  the  report  may  be  submitted  for 
ratification,  and  when  ratified,  all  parties  are  concluded  and  the  liti- 
gation terminated.     Ib. 

24.  This  is  the  general  rule,  but  there  may  be  cases  in  which  it  would  and 
ought  to  be  relaxed,  when  the  party  seeking  relief  can  show  himself 
free  from  blame  or  negligence.     Ib. 

25.  Trustees  under  a  deed,  one  of  the  trusts  of  which  was,  that  after  satis- 
fying the  purposes  of  the  deed,   viz.  the  payment  of  the  debts  of  the 
grantor,  the  residue  of  the  property  should  be  held  for  the  use  of  the 
grantor,  were  appointed  his  trustees  under  the  insolvent  laws,  and 
acting  in  this  double  capacity,  transferred  certain  stocks  belonging  to 
the  grantor  (the  complainant)  to  the  defendant.     All  his  debts  hav- 
ing been  paid  and   the  trustees   directed  by  a  decree  of  this   court  to 
convey  to  him  all  the  property  they  had  not  disposed  of  in  performance 
of  their  duty  as  trustees  in  insolvency  :  it  was  HELD — 

That  the  complainant  was  entitled  to  maintain  a  bill  in  equity  for 
the  recovery  of  the  stock  from  the  defendant,  upon  the  ground, 
that  the  transfer  had  been  improperly  obtained,  and  that  the  trus- 
tees were  not  necessary  parties  to  such  suit.  Williams  vs.  Savage 
Manufacturing  Company,  306. 

26.  A  party  being  elected  to  examine  witnesses  upon  their  volr  dire,  is  pre- 
cluded from  resorting  to  any  other  mode  to  show   their  interest  in  the 
event  of  the  suit.     Ib. 

27.  The  legal  presumption,  when  the  three  years  from  the  date  of  the  de- 
cree have  elapsed,  is,  that  it  has  been  executed  or  satisfied,  and  the  ap- 
propriate remedy  is,  to  revive  it  by  bill  of  revivor.    Franklin  vs.  Frank- 
lin, 342. 

28.  The  appearance  of  the  defendants  to  the  bill,  and  their  submitting  to 
answer   it,  would  be  a  waiver  of  any  objection  to  the  jurisdiction  of 
the  court.     Brooks  vs.  Delaplaine,  351. 

29.  Where  a  party  sets  up  an  agreement  in  his  bill,  involved  under  the  stat- 
ute of  frauds,  and  the  defendant,  by  his  answer,  denies  the  agreement, 
it  is  not,  perhaps,  necessary  for  him  to  insist  upon  the  statute  as  above, 
but  the  complainant,  at  the  hearing,  must  establish  the  agreement  by 
written  evidence.     Small  vs.  Orcings,  363. 

30.  If  the  defendant  admits,  in  his  answer,  the  parol  agreement,  without  in- 
sisting on  the  statute,   the   court  will  decree  a  specific  performance, 
upon  the  ground,  that  the  defendant  has  thereby  renounced  the  bene- 
fit of  the  statute.     Ib. 


586  INDEX. 

PRACTICE  IN  CHANCERY—  Continued. 

31.  The  complainant  cannot  rely  upon  the  admissions  of  the  answer,  and 
obtain  relief  upon  those  admissions,  unless  he  has  set  them  out  in  his 
bill.     Ib. 

32.  A  complainant  in  his  bill  cannot  put  in  issue  whatever  he  intends  prov- 

ing, otherwise  the  evidence  will  be  excluded.  The  Court  of  Chan- 
cery decrees  only  secundum  allegata  et  probata.  Ib. 

33.  There  being  no  allegation  in  the  bill  of  part  performance,  the  evidence 
seeking  to  establish,  it  was  excluded.     76. 

34.  When  a  deed  is  rendered  inoperative  and  void,  by  disproving  the  con- 
sideration expressed  in  it,  evidence  of  a  different  consideration  will 
not  be  received  to  set  it  up.     Elysville  Manuf.  Co.  vs.  Okisko  Co.,  392. 

35.  But,  where  a  party  maintains  the  validity  of  a  deed,  and  seeks,  upon 
the  allegation  that  the  consideration  money  has  not  been  paid,  to  en- 
force its  payment  by  the  assertion  of  the  vendor's  lien,  evidence  may 
be  admitted  to  prove,  that  he  has  been  satisfied  for  the  purchase  money, 
by  receiving  something  else  as  an  equivalent  therefor.     Ib. 

36.  When  a  court  of  equity  has  control  of  both  personal  and  real  estate, 

it  will,  in  order  to  prevent  circuity,  and  save  expense  and  delay,  ap- 
ply them  in  the  order  in  which,  as  between  the  heir  and  executor,  they 
are  liable.  Goodburn  vs.  Stevens,  420. 

37.  A  decree  is  considered  as  enrolled,  when  signed  by  the  Chancellor, 

filed  by  the  Register,  and  the  term  elapsed  at  which  it  was  made,  and 
such  decree  cannot  be  reheard  upon  petition.  Pfeltz  vs.  Pfeltz,  455. 

38.  Every  decree  stands,  and  must  be  all  owned  to  stand,  for  what  it  pur- 

ports to  be  on  its  face,  until  it  has  been  revised  or  reversed,  in  a 
proper  and  solemn  manner.  76. 

39.  A  decree  passed  for  the  sale  of  property  for  the  purpose  of  partition 
among  the  parties  to  the  cause.     After  enrollment  of  this  decree,  a 
petition  was  filed  by  one  of  the  parties,  setting  up  an  exclusive  right  to 
the  whole  proceeds  of  sale.     HELD — 

That  as  the  decree  contained  no  reservation  of  equities,  or  for  further 
directions,  it  was  of  course  final  upon  the  rights  of  the  parties, 
and  that  this  court  upon  such  petition  had  no  more  power  to 
change  the  rights  thus  settled,  than  it  would  have  to  open  the  en- 
rollment and  vacate  the  decree.  Ib. 

40.  When  a  decree  is  obtained  and  enrolled,  though  on  a  bill  taken  pro 
confisso,  it  cannot  be  reheard  on  petition,  and  the  remedy  of  the  party 
grieved,  is  by  a  bill  to  set  aside  the  decree  for  fraud,  or  a  bill  of  re- 
view, which  only  lies  against  those,  who  were  parties  to  the  original 
bill.     16. 

41.  A  bill  of  review  founded  on  new  matter  discovered  since  the  decree, 
cannot  be  filed  without  leave,  and  the  granting  of  this  leave,  is  left  to 
the  sound  discretion  of  the  court,  arising  out  of  the   circumstances  of 
each  case.     Ib. 

42.  The  limitation  of  time  as  to  appeals  from  the  decrees  of  the  court, 
applies  to  the  right  of  filing  bills  of  review,  and  such  a  bill  filed  nine 
months  after  the  date  of  the  decree,  comes  too  late.  Ib. 


INDEX.  587 

PRACTICE  IN  CHANCERY—  Continued. 

43.  Where  judgments  at  law,  upon  which  executions  have  issued,  and 
been  levied  upon  lands,  are  enjoined,  after  the  dissolution  of  the  in- 
junction, nothing  more  is  necessary  to   authorize  the  sheriff  to  sell, 
than  the  writs  of  venditioni  exponas.    The  lands  are  to  be  regarded  as 
in  custodia  legis,  and  the  death  of  the  defendant  in  the  judgments,  after 
execution  had  issued  and  been  levied,  does  not  render  a  srire  facias 
necessary  against  his  heirs  or  tenements.     Boyd  &f  Hance  vs.  Harris, 
466. 

44.  The  Courts  always  observe  great  caution  in  taking  property  out  of  the 
hands  of  a  sheriff,  held  by  him  under  execution,  and  the  case  of  Alex- 
ander vs.  Ghiselin,  is  the  only  case  in  which  the  sheriff's  possession  has 
been  disturbed,  unless  upon  some  grounds  affecting  the  validity  of  the 
judgment,  or  the  regularity  of  the  process,  by  which  the  seizure  is 
made.     76. 

45.  A  petition  was  filed,  asking  that  a  sale  made  by  the  sheriff,  under  the 
executions  upon  the  above  mentioned  lands  should  be  vacated,  and  the 
property  resold  by  a  trustee  appointed  under  a  decree  in  a  creditor's 
suit  to  which  the  judgment  creditor  was  not  a  party.     But  the  court 
refused  to  grant  the  relief  asked  for,  and  said  that  it  was  neither  war- 
ranted by  authority,  nor  by  any  established  principles  of  law  or  equity. 
16. 

46.  A  court  of  equity  will,  under  special  circumstances,  and  when  the  es- 
tate is  in  danger  of  being  sacrificed,  in  consequence  of  clouds  upon 
the  title,  or  conflict  and  confusion  growing  out  of  the  number  and 
character   of  the  liens   and  incumbrances    upon    it,    interpose   and 
keeping  rival  creditors  off,  sell  the  property  for  the  general  benefit  of 
all.     Ib. 

47.  A  court  of  equity  will  always  ratify  and  confirm  that,  when  done, 
which,  as  a  matter  of  course,  if  previously  applied  to,  it  would  have  or- 
dered to  be  done.     Clark  vs.  Abbot,  474. 

48.  A  decree  was  passed,   authorizing  the  trustee  to  sell  so  much  of  the 
mortgaged  property,  as  would  be  necessary  to  pay  the  amount  then 
due.     The  execution  of  this  decree  was  stayed  by  injunction,   and 
in  the  mean  time  other  installments  of  the  mortgage  debt  became  due. 
After  the  injunction  was  dissolved,  the  trustee  sold  so  much  of  the  prop- 
erty as  would  satisfy  the  amount  due  at  the  time  of  sale.    HELD — 

That  as  the  decree  must  be  regarded  as  standing  as  a  security  for  the 
entire  mortgage  debt,  the  court,  if  applied  to,  would  have  em- 
powered the  trustee  to  do  what  he  has  done,  and  will,  therefore, 
give  its  subsequent  assent  to  the  act.     Ib. 
See  APPEAL,  1  to  3. 

ATTORNEY,  2. 

COMMISSIONS,  4. 

CONTRIBUTION  AMONG  JOINT  OBLIGORS,  5. 

CORPORATIONS,  3. 

DECREE  FOR  AN  ACCOUNT. 

DEMURRER. 

DISCOVETY  OF  TITLE. 


588  INDEX. 

PRACTICE  IN  CHANCERY— Continued. 
See  DOWER,  16. 

EVIDENCE,  8,  9. 

EXCEPTIONS  TO  ANSWERS. 

INJUNCTION. 

LAPSE  OF  TIME. 

LIMITATIONS,  5,  6. 

MORTGAGOR  AND  MORTGAGEE,  3,  5. 

PARTITION. 

PLEADING. 

RECEIVER. 

SALES  BY  TRUSTEES,  13. 

TRUSTEES  THEIR  POWERS  AND  DUTIES. 

STATUTE  OF  FRAUDS,  3. 
PRAYER  FOR  GENERAL  RELIEF. 

1.  The  omission  of  the  prayer  for  specific  relief,  is  no  reason  why,  under 

the  general  prayer,  the  complainants  may  not  have  such  relief  as  the 
case  alleged  and  proved  may  entitle  them  to.  Crainvs.  Barnes  Sf  Fer- 
gusson,  151. 

2.  The  only  limitation  upon  the  power  of  the  court  to  grant  relief  under 

the  general  prayer,  is,  that  it  must  be  agreeable  to  the  case  made  by 
the  bill  and  not  different  from  or  inconsistent  with  it.     76. 
PRE-EMPTION  RIGHT. 

See  PATENTS. 
PREFERENCE. 

See  DEEDS  VOID  UNDER  INSOLVENT  LAWS,  5,  7,  8. 

UNDUE  PREFERENCE. 
PRESUMPTION. 

1.  The  legal  presumption,  when  the  three  years  after  the  date  of  the  de- 
cree have  elapsed,  is,  that  it  has  been  executed  or  satisfied,  and  the  ap- 
propriate remedy  is  to  revive  it  by  bill  of  revivor.  Hays  vs.  Henry,  342. 
See  AGENT,  2,  3. 

FRAUD,  2. 
PRIVATE  SALE. 

See  SALES  BY  TRUSTEES,  7. 
PROCEEDINGS  AT  LAW. 
See  INJUNCTION,  10  to  16. 
PRODUCTION  OF  BOOKS  AND  PAPERS. 

1.  Since  the  act  of  assembly,  1798,  ch.  84,  there  can  be  no  doubt  of  the 
power  of  this  court  to  compel  either  of  the  parties  to  a  suit  to  produce 
books  and  papers  in  the  possession  of  the  adverse  party,  which  may 
relate  to  matters  in  issue  between  them.  Bradford  vs.  Williams,  199. 

3.  But  this  is  a  power  to  be  exercised  with  caution,  and  the  party  calling 

for  its  exercise  should,  with  a  reasonable  degree  of  certainty,  designate 
the  books  and  papers  required,  and  the  facts  expected  to  be  proved  by 
them.    Ib. 
PROMISSORY  NOTES. 

1.  A  bonafide  holder  of  a  negotiable  instrument,  for  a  valuable  considera- 
tion, without  notice  of  facts,  which  effect  its  validity  as  between  ante. 


INDEX.  589 

PROMISSORY  NOTES— Continued. 

cedent  parties,  if  he  takes  by  indorsement  before  it  becomes  due,  ac- 
quires a  valid  title  and  may  recover  upon  it,  though  as  between  the 
antecedent  parties  the  transaction  may  be  invalid.  Gwyn  vs.  Lee,  445. 

2.  The  holder  of  such  paper,  before  it  is  due,  is  not  bound  to  prove  that  he 

is  a  bona  fide  holder  for  valuable  consideration  without  notice,  for  the 
law  will  presume  this  in  the  absence  of  rebutting  proof.  Ib. 

3.  If  the  want,  or  failure,  or  illegality  of  the  consideration  has  been  estab- 

lished, or  if  it  be  shown  that  the  note  was  lost,  or  stolen  before  it 
come  into  the  possession  of  the  holder,  it  is  then  incumbent  on  him  to 
show  that  he  has  given  value  for  it.     Ib. 
PURCHASERS. 

1.  A  trustee  selling  under  a  decree  of  the  Court  of  Chancery,  as  a  general 

rule,  sells  the  title  of  the  parties  to  the  suit,  and  nothing  more  ;  and 
though  a  purchaser  discovering  a  defect  in  his  title  at  the  proper  time, 
may  be  relieved  from  his  purchase  by  asking  for  a  rescission  of  the 
sale,  he  cannot  be  permitted,  whilst  holding  on  to  his  purchase,  to  in- 
sist upon  having  his  title  perfected  by  the  application  of  the  proceeds 
of  sale,  to  the  extinguishment  of  the  claims  of  incumbrancers  not  par- 
ties to  the  suit.  Duval  vs.  Speed,  229. 

2.  If  a  purchaser  would  be  refused  redress  upon  the  ground  of  a  deficiency 

in  the  number  of  acres,  he  could  not  be  obliged,  under  the  same  cir- 
cumstances, to  pay  for  an  excess.  Goldsborough  vs.  Ringgold,  239. 

3.  A  bona  fide  purchaser  of  stock  in  a  bank  or  other  corporation,  standing 

in  the  name  of  trustees,  without  notice  of  the  trust,  will  be  protected 

whether  the  trustees  have  the  legal  authority  to  make  the  transfer  or 

not.     Albert  and  wife  vs.  Savings  Bank  et  al.,  407. 
See  EQUITY  AND  EQUITABLE  DEFENCE. 

LAPSE  OF  TIME,  3. 

SALES  BY  TRUSTEES,  2. 

USURY,  2. 

DOWER,  9. 

RATIFICATION  OF  SALES. 
See  SALES  BY  TRUSTEES,  13. 

INADEQUACY  OF  PRICE,  1. 
RECEIVER. 

1.  A  receiver  in  strictness  should  not  be  appointed  before  the  coming  in  of 

the  answers,  and  although  this  rule  has  been  broken  through,  yet  the 
grounds  which  will  induce  the  court  to  disregard  it,  must  be  very 
strong  and  special.  Clark  vs.  Ridgely,  70. 

2.  A  receiver  will  not  be  appointed  unless  it  appears  that  such  a  measure 

is  required  to  preserve  the  property  from  danger  of  loss.    Ib. 

3.  When  an  application,  by  bill  or  petition,  is  made  to  the  court  to  appoint 

a  receiver,  a  sufficient  foundation  must  be  laid  by  stating  the  facts 
which  will  authorize  the  interference  of  the  court  in  this  form.  Ib. 

4.  When  a  bill  sets  forth  the  complainant's  title,  and  stated  that  a  party 

had  wrongfully  taken  possession  of  the  property,  but  did  not  state  that 
such  party  was  insolvent  or  unable  to  account  for  the  same,  or  that 

VOL.  i — 50 


590  INDEX. 

RECEIVER—  Continued. 

the  rents  and  profits  were  in  danger  of  being  lost,  the  court  refused  to 
appoint  a  receiver.  Ib. 

5.  The  court  interposes,  by  appointing  a  receiver,  against  the  legal  title 

with  reluctance,  and  fraud  or  imminent  danger,  if  the  intermediate 
possession  should  not  be  taken  by  the  court,  must  be  clearly  proved. 
Thompson  vs.  Diffenderfer,  489. 

6.  Though  the  court  will  not,  by  the  appointment  of  a  receiver,  deprive  a 

prior  mortgagee,  having  the  legal  title,  of  'his  right  of  possession,  it 
will  not  object  to  such  appointment  by  any  act  short  of  a  personal  as- 
sertion of  his  legal  right,  and  taking  possession  himself.     Ib. 
1.  The  power  of  appointing  a  receiver  is  a  delicate  one,  and  to  be  exer- 
cised with  prudence  and  circumspection,  yet,  upon  a  sufficient  cause 
stated  and  proved,  the  court  will  exercise  the  power,  though  by  so  do- 
ing, the  business  of  the  defendants,  as  merchants,  would  be  broken 
up.     76. 
RECORDING  OF  DEEDS. 

The  act  of  1785,  ch.  72,  sec.  11,  authorizes  the  court  to  direct  a  deed  to  be 
recorded,  but  with  a  limitation  that  it  shall  not  effect  the   rights  of 
creditors,  becoming  such  after  the  execution  of  the  deed.     Brooks  vs. 
Dent,  523. 
REMEDIAL  LAWS. 

See  CONSTRUCTION  OF  STATUTES,  ]. 
REMEDY  AT  LAW. 

See  JURISDICTION,  1,  2,  13. 

SPECIFIC  PERFORMANCE,  7. 
RENTS  AND  PROFITS. 
See  DOWER,  5  to  7. 

ELECTION,  2. 
RES  ADJUDICATA. 

1.  The  plaintiff  having  sued  at  law  for  rents  and  profits  of  lands,  as  dam- 
ages for  the  detention  of  dower,  and  having  failed  to  recover  them 
there,  the  question  as  to  them   must  be  regarded  as  res  adjudicata. 
They  cannot  form  the  subject  of  a  new  litigation,  the  judgment  at  law 
having  foreclosed  the  plaintiff.     Kiddall  vs.  Trimble,  143. 
RESOLUTIONS  OF  CORPORATIONS. 
See  AGENT,  2. 

RESULTING  TRUST. 

1.  Where  the  consideration  for  a  conveyance  is  paid  by  one,  not  a  party 

to  the  instrument,  there  is  a  resulting  trust  in  his  favor,  a  trust  im- 
plied by  law,  from  the  presumed  intention  of  the  parties,  and  the  ob- 
vious justice  of  the  case,  which  may  be  proved  by  parol,  being  except- 
ed  from  the  statute  of  frauds.  Hollis  vs.  Hollis,  479. 

2.  If  it  could  be  proved  that  land  was  purchased  with  the  wife's  money, 

then,  as  between  her  and  the  heirs  at  law,  or  volunteers  claiming  un- 
der her  husband,  a  trust  would  result  to  her,  being  implied  by  law 
from  the  intention  of  the  parties  and  the  justice  of  the  case,  and  which 


LNDEX.  591 

RESULTING  TRUST— Continued. 

being  expressly  excepted  from  the  statute  of  frauds  may  be  proved  by 
parol.     Brooks  vs.  Dent,  523. 
3.  But  such  resulting  trust  cannot  be  set  up  to  the  prejudice  of  the  rights 

of  subsequent  creditors.     76. 
RETURN  OF  COMMISSIONS  TO  MAKE  PARTITION. 

See  PARTITION. 
SALES  BY  TRUSTEES. 

1.  An  advertisement  for  sale  of  lands  by  a  trustee,  stated  that,  "by  virtue 

of  a  decree  of  the  High  Court  of  Chancery,  there  will  be  sold  certain 
real  estate,"  naming  the  tracts  and  giving  their  locality,  "of  which  J. 
C.  died  seized  and  possessed,"  but  did  not  state  the  names  of  the  par- 
ties to  the  suit  in  which  the  decree  passed,  nor  the  several  incumbran- 
ces  upon  the  property.  HELD — 

That  the  sale  would  not,  on  this  account,  be  vacated,  in  the  absence 
of  proof  that  competition  in  the  purchase  was  prevented,  or 
the  sale  in  any  respect  prejudiced  thereby.  Gibbs  vs.  Cunning- 
ham, 44. 

2.  The  objection  that  the  trustee  did  not  sell  the  interest  of  the  parties  to 

the  suit,  but  only  the  interest  and  title  of  which  J.  C.  died  seized  and 
possessed,  is  anj)bjecti9n  which  only  the  purchasers  themselves  could 
take,  as  they,  and  they  alone,  are  injured  by  it.  Ib. 

3.  Where  a  sale  is  objected  to,  on  the  ground  of  inadequacy  of  price,  re- 

sulting from  doubts  about  the  title,  which  doubts  could  have  been  re- 
moved, by  reasonable  efforts  on  the  part  of  the  trustee,  his  neglect  to 
do  so  may  effect  the  question  of  ratification.  Ib. 

4.  Inadequacy  of  price  will  not  induce  the  court  to  vacate  a  sale  in  other 

respects  unexceptionable,  unless  such  inadequacy  is  so  gross  as  to  in- 
dicate a  want  of  reasonable  judgment  and  discretion  on  the  part  of  the 
trustee.  76. 

5.  The  sale  in  this  case  was  made  for  $3,000.     HELD — That  an  offer  of 

$4,000,  made  subsequent  to  the  sale,  and  after  the  value  of  the  prop- 
erty had  been  enhanced,  could  have  but  little  weight  in  determining 
whether  the  property  previously  sold  at  a  price  so  much  below  its 
value,  as  to  indicate  a  want  of  reasonable  judgment  in  the  trustee.  Ib. 

6.  The  validity  or  invalidity  of  a  sale  must  depend  upon  the  state  of  cir- 

cumstances existing  at  the  time  it  was  made.  In  sales  made  by  trus- 
tees acting  under  the  decrees  of  a  Court  of  Chancery,  the  court  is  the 
contracting  party  on  the  one  side,  and  the  bidder  on  the  other,  the 
trustee  being  regarded  as  the  mere  agent  or  attorney  of  the  court.  Ib. 

7.  A  trustee  after  making  fruitless  efforts  to  sell  lands,  according  to  the 

terms  of  the  decree,  sold  them  at  private  sale,  at  a  price  greatly  exceed- 
ing the  best  offer  he  could  get  for  them  at  public  sale.     HELD — 
That,  upon  the  principle  that  chancery  will  ratify  an  act  when  done, 
which  upon  previous  application  would  have  been  authorized,  the 
objection  to  the  act  of  the  trustee,  founded  upon  the  form  of  the 
sale,  cannot  prevail.     Ib. 

8.  Whilst  the  court  will  vacate  sales,  by  trustees,  made  under  the  influence 


592  INDEX. 

SALES  BY  TRUSTEES— Continued. 

of  error,  fraud,  misrepresentation,  or  injurious  mistake,  it  would, 
nevertheless,  be  a  fatal  policy  to  be  astute  in  finding  out  objections  to 
them.  Ib. 

9.  It  was  objected  to  the  sale,  that  the  trustee's  bond  was  not  upon  stamp- 

ed paper,  as  required  by  the  act  of  1845,  ch.  193,  which  went  into 
operation  .on  the  1st  of  May,  1846.  The  bond  was  dated  on  the  29th  of 
April,  1846,  but  was  not  filed  and  approved  until  the  7th  of  July  fol- 
lowing. HELD — 

That  this  bond  having  been  approved  by  the  Chancellor,  as  required  by 
the  decree,  it  would  be  of  dangerous  consequence  to  say  that  the 
purchaser  shall  not  get  the  benefit  of  his  purchase,  if  the  bond  for 
any  reason  is  defective.  16. 

10.  A  trustee  selling  under  a  decree  of  the  Court  of  Chancery,  as  a  general 
rule,  sells  the  title  of  the  parties  to  the  suit,  and  nothing  more.     Du- 
vall  vs.  Speed,  229. 

11.  It  is  the  established  doctrine  in  Maryland,  that  a  sale  made  by  a  trus- 
tee under  a  decree  of  the  Court  of  Chancery,  is  a  transaction  between 
the  court  and  the  purchaser,  and  the  report  of  the  trustee  and  the  order 
of  the  court  ratifying  the  same,  must  be  regarded  as  the  evidence  of  the 
contract  between  the  parties.     Goldsborough  vs.  Ringgold,  238  -,  Har- 
rison vs.  Harrison,  331. 

12.  An  objection  to  a  sale  upon  the  ground  that  the  decree  under  which  it 
was  made  had  been  appealed  from,  and  an  approved  appeal  bond  filed 
of  which  the  trustee  prior  to  the  sale  had  notice,  was  sustained,  and 
the  sale  set  aside.     Chesapeake  Bank  vs.  McLellan  &f  Raborg,  328. 

13.  Though  the  trustee  may  depart  from  the  special  directions  of  the  de- 
cree, yet  a  subsequent  ratification  by  the  court  would  render  a  sale  as 
binding  and  valid,  as  if  he  had  pursued,  in  all  respects,  those  direc- 
tions.    Harrison  vs.  Harrison,  331. 

14.  The  court  in  confirming  the  acts  of  its  agents  who  have  not  followed 
the  directions  given  them,  must  take  care  that  no  injustice  is  done  the 
parties  interested,  and  that  they  have  an  opportunity  of  being  heard 
before  their  rights  are  decided  upon.     76. 

15.  It  is  not  always  a  valid  objection  to  the  confirmation  of  a  sale,  proved 
to  have  been  well  attended  and  fair  in  other  respects,  that  it  was  made 
on  a  different  day,  and  at  a  different  place  from  those  mentioned  in  the 
advertisement.     Ib. 

16.  The  report  of  the  sale  by  the  trustee  is  not  absolutely  necessary  to  per- 
fect the  title  of  the  purchaser.    16. 

17.  Trustees  acting  under  decrees  to  sell,  have  been  permitted,  when  sales 
of  the  property  could  not  be  readily  or  advantageously  made,  to  rent 
it,  and  account  for  the  rents  to  the  parties  entitled  to  the  proceeds, 
and  the  court  will  give  like  authority  to  collect  and  account  for  rents 
due  when  the  sales  are  effected.     Clark  vs.  Mbott,  475. 

See  STATUTE  or  FRAUDS,  1. 
INADEQUACY  OF  PRICE. 


INDEX.  593 

SEAMAN'S  WAGES. 

1.  The  crew  of  a  steamboat  plying  between  the  ports  of  adjoining  states 

upon  navigable  tide  water,  have  a  right  to  proceed  for  wages  due  them, 
by  libel  in  the  District  Court  of  the  United  States,  and  have  a  lien  on 
the  vessel,  her  tackle  and  furniture,  for  such  wages.  Abbott  vs.  Steam 
Packet  Co.,  542. 

2.  This  right  to  libel  the  vessel  in  the  admiralty  courts  for  wages,  extends 

to  every  officer  and  seaman  who  assists  in  navigating  her  except  the 
captain.  Ib. 

3.  The  officers  and  seamen  have  a  triple  security  for  their  wages  :  they 

may  have  recourse  to  the  vessel,  the  owner,  and  the  master.     Ib. 

4.  The  seaman's  claim  for  wages  follows  the  ship  and  its  proceeds,  in 

whose  hands  soever  they  may  come,  is  preferred  to  all  other  demands, 
and  constitutes  a  sacred  lien,  which  continues  as  long  as  a  single  plank 
of  the  ship  remains,  and  extends  to  the  whole  amount  of  compensation 
due  the  seamen.     Ib. 
SECRET  TRUSTS. 

The  court  does  not  favor  secret  trusts,  and  will  not  allow  them  to  be  set 

up  to  defeat  the  right  of  creditors.     Brooks  vs.  Dent,  523. 
SHERIFF. 

See  POUNDAGE  FEES,  3. 

PRACTICE  IN  CHANCERY,  43  to  45. 
SLAVES, 

See  FREE  NEGROES. 
MANUMISSION,  1,  2. 
WILL  AND  TESTAMEMT,  14. 
SPECIFIC  PERFORMANCE. 

1.  A  bill  for  the  specific  performance  of  a  contract  is  an  application  to  the 

sound  discretion  of  the  court,  which  withholds  or  grants  relief  accord- 
ing to  the  circumstances  of  each  particular  case,  and  in  the  exercise 
of  its  extraordinary  jurisdiction  in  such  cases,  the  court,  though  not 
exempt  from  the  general  rules  of  equity,  acts  with  more  freedom  than 
when  exercising  its  ordinary  powers.  Tyson  vs.  Watts,  13. 

2.  The  contract  must  be  fair,  and  just,  and  certain,  and  founded  on  an 

adequate  consideration,  and  if  deficient  in  either  of  these  requisites,  its 
performance  will  not  be  decreed  ;  hence  the  plaintiff  who  seeks  the 
enforcement  must  make  out  a  stronger  case  than  is  required  of  him  who 
resists  the  decree.  Ib. 

3.  The  contract  must  also   possess  the  essential  ingredient  of  mutuality, 

and  in  cases  of  inequality  of  obligation,  it  is  better  to  leave  the  plaintiff 
to  his  remedy  at  law  for  damages  ;  for  if  equity  acts  at  all,  it  must  act 
ex  vigore,  and  carry  the  contract  into  execution  with  unmitigated  sever- 
ity. Ib. 

4.  The  manifest  object  of  the  defendant  in  this  case,  (and  which  he  believ- 

ed was  secured  by  the  contract)  was  to  have  the  minerals  on  his  farm 
worked  as  well  as  explored,  and  by  the  contract  he  gave  full  power  to 
P.,  the  assignor  of  the  plaintiff,  to  make  explorations  and  to  work  the 

50* 


594  INDEX. 

SPECIFIC  PERFORMANCE— Continued. 

mines,  but  the  only  engagement  on  the  part  of  P.  being  limited  to  ex- 
plorations, the  contract  was  held  deficient  in  reciprocity  of  obligation 
and  its  specific  execution  refused.  16. 

5.  Upon  a  bill  for  the  specific  performance  of  a  contract,  the  court  must 

entertain  no  reasonable  doubt  of  the  existence  of  the  contract,  and  be 
satisfied  that  it  is  one,  which,  looking  to  what  is  just  and  reasonable, 
ought  to  be  enforced.  Waters  vs.  Howard,  112. 

6.  The  specific  performance  of  contracts  in  equity,  is  not  a  matter  of  ab- 

solute right  in  the  party,  but  of  sound  discretion  in  the  court ;  and  un- 
less the  court  is  satisfied  that  the  application  is  fair,  just  and  reasonable 
in  every  respect,  it  will  refuse  to  interfere,  but  leave  the  party  to  his 
remedy  at  law  for  compensation  in  damages.  Ib. 

7.  In  contracts  relating  to  personal  property,  unless  it  can  be  shown  that 

adequate  compensation  cannot  be  given  by  an  action  at  law,  chancery 
will  not  interfere.  Ib. 

8.  The  defendant's  testator  entered  into  a  contract  with  the  complainants, 

by  which  they  were  to  become  his  agents  for  the  sale  of  his  crops,  ad- 
vance him  money  and  accept  his  drafts,  for  the  payment  of  which  he 
pledged  his  crops  on  hand  and  the  growing  crops  of  the  year  1847. 
Upon  the  faith  of  this  agreement,  complainants  made  large  advances 
to  testator,  and  at  the  time  of  his  death,  which  occurred  in  January, 
1848,  he  was  largely  indebted  to  them.  Upon  a  bill,  by  complainants, 
claiming  a  lien  on  the  corn  and  tobacco  in  hand,  and  on  the  crop  of 
wheat  sown  in  the  fall  of  1847,  and  to  enforce  the  specific  performance 
of  this  contract,  it  was  HELD — 

That  this  was  a  positive  agreement  on  the  part  of  the  testator,  to 
send  to  complainants,  to  cover  their  advances  to  him,  his  crops  of 
wheat,  tobacco  and  corn  which  would  be  marketable  in  the  year 
1847,  and  also  the  wheat  and  crop  seeded  in  that  year,  and  that 
this  court  would  enforce  its  specific  execution.  Sullivan  vs.  Tttcfc, 
ex'r  of  Bowie,  59. 

9.  Courts  of  equity  do  not  enforce  the  specific  performance  of  contracts 

relating  to  personal  property,  with  the  same  facility  and  universality 
as  those  relating  to  real  estate  ;  because  in  the  former  case,  courts  of 
law  usually  afford  a  complete  remedy.  Ib. 

10.  But  whenever  a  violation  of  the  contract  cannot  be  correctly  estimated 
in  damages,  or  wherever  from  the  nature  of  the  contract,  a  specific 
performance  is  indispensable  to  justice,  a  court  of  equity  will  not  be 
deterred  from  interfering  because  personal  property  is  the  subject  of 
the  agreement.     Ib. 

11.  There  can  be  no  doubt  that  if  a  party  has  succeeded  in  proving  a  con- 
tract, and  in  showing  that  it  has  been  in  part  performed,  he  is  entitled 
to  have  it  specifically  executed.     Owings  vs.  Baldwin  8f  Wheeler,  120. 

12.  The  remedy  in  cases  of  specific  performance  must  be  mutual,  and  if 
one  of  the  parties  is  not  bound,  or  is  not  able  to  perform  his  part  of 
the  contract,  he  cannot  call  upon  the  court  to  compel  a  performance 
by  the  opposite  party.     Beard  vs.  Linthicum,  345. 


INDEX.  595 

SPECIFIC  PERFORMANCE—  Continued. 

13.  A  Court  of  Chancery  will  not  decree  the  specific  performance  of  a 
mere  voluntary  agreement.     Shepherd  vs.  Shepherd,  244. 

14.  The  Chancellor  refused  to  decree  the  execution  of  the  contract  set  up 
in  this  case,  because  there  was  a  want  of  the  essential  element  of  un- 
equivocal certainty  in  the  agreement  and  in  the  acts  relied  upon,  as 
part  performance.     76. 

15.  The  ground  upon  which  a  court  of  equity  decrees  the  specific  perform- 
ance of  a  parol  agreement  respecting  lands,  is,  that  in  case  of  a  clear 
part  performance  by  one  party,  it  would  be  fraud  in  the  other,  to  re- 
fuse to  perform  the  agreement  on  his  part.     It  would  be  perverting 
the  statute  from  a  shield  against,  into  an  instrument  of,  fraud.     Small 
vs.  Oioings,  363. 

Sec  PART  PERFORMANCE,  1. 
STATUTE  OF  FRAUDS. 

1.  It  may  well  be  doubted  whether  sales  made  by  trustees  under  the  au- 

thority of  our  courts  of  equity  are  within  the  statute  of  frauds.  Har- 
rison vs.  Harrison,  331. 

2.  It  has  been  repeatedly  remarked  by  eminent  judges,  that  the  disposition, 

which  at  one  time  existed  to  relax  the  statute  of  frauds,  should  be  op- 
posed, and  that  the  courts  should  take  a  stand  against  any  further  en- 
croachments upon  its  provisions.  Beard  vs.  Linthicum,  345. 

3.  Where  a  party  sets  up  an  agreement  in  his  bill,  invalid  under  the  statute 

of  frauds,  and  the  defendant  by  his  answer  denies  the  agreement,  it  is 
not  perhaps  necessary  for  him  to  insist  upon  the  statute  as  a  bar,  but 
the  complainant  at  the  hearing  must  establish  the  agreement  by  written 
evidence.  Small  vs.  Owings,  363. 

4.  Where  the  consideration  for  a  conveyance  is  paid  by  one,  not  a  party 

to  the  instrument,  there  is  a  resulting  trust  in  his  favor,  a  trust  implied 
by  law  from  the  presumed  intention  of  the  parties,  and  the  obvious  jus- 
tice of  the  case,  which  may  be  proved  by  parol,  being  excepted  from 
the  statute  of  frauds.  Hollis  vs.  Hollis,  479. 

5.  The  weight  of  American  authority,  is,  that  it  is  sufficient  to  bind  a  sure- 

ty, if  his  engagement  to  pay  the  debt  of  another  is  in  writing,  although 
the  consideration  may  not  be  reduced  to  writing.     But  where  both  the 
consideration  and  the  engagement  are   in  writing,  the  surety  is  bound, 
even   according  to  the  strict  English  construction  of  the  statute  of 
frauds.     Brooks  vs.  Dent  et  al.,  523. 
See  PART  PERFORMANCE,  2,  3,  6,  9,  10. 
PRACTICE  IN  CHANCERY,  29,  30. 
RESULTING  TRUST. 
SUBSCRIPTION  TO  STOCK. 

See  AGENT,  3. 
SURETY. 

See  STATUTE  OF  FRAUDS,  5. 
SURCHARGING  AND  FALSIFYING  ACCOUNTS. 

1.  Where  an  agreement  was  made  to  settle  a  claim  presented  to  the  com- 
plainant in  the  form  of  a  stated  account,  which,  without  examination 


596  INDEX. 

SURCHARGING  AND  FALSIFYING  ACCOUNTS—  Continued. 

was  assumed  to  be  correct,  the  complainant  will  be  allowed  to  sur- 
charge and  falsify  such  account,  to  the  extent  of  the  errors  specified 
in  his  bill,  independently  of  the  question  of  fraud,  actual  or  construc- 
tive. Williams  vs.  Savage  Manufacturing  Company,  306. 

2.  The  court  is  to  take  the  account  as  stated,  and  the  onus  probatidi  is  upon 

the  party  having  liberty  to  surcharge  and  falsify,  and  he  will  be  re- 
stricted to  proof  of  error  specified  in  his  bill.  Ib. 

3.  When  the  accounts  upon  which  the  settlement  was  based,  were  pre- 

sented to  the  complainant,  he  was  deprived  of  much  of  his  mental 
capacity,  and  incapable  of  giving  them  that  examination  which  was 
indispensable  to  their  full  comprehension.     HELD — 
That  under  these  circumstances,  it  was  the  duty  of  the  court,  if  er- 
rors were  pointed  out,  to  permit  the  plaintiff  to  surcharge  and  fal- 
sify the  accounts,  though  the  settlement  based  upon  them  was 
regarded   as   a  family  settlement,  which  the  court  will  usually 
uphold  with  a  strong  hand.     16. 
TENANCY  IN  COMMON. 

See  WILL   AND  TESTAMANT,  2. 
TRANSFER  BY  OPERATION  OF  LAW. 

1.  Where  the  administrator  of  an  executor  takes  out,  jointly  with  another, 

letters  of  administration  de  bonis  non,  on  the  estate  of  the  testator,  he 
does  not  exclusively  represent  both  estates,  and,  consequently,  there  can 
be  no  transfer,  by  operation  of  law,  of  the  property  in  his  hands  as  ad- 
ministrator to  him  as  administrator  de  bonis  non.  Thomas  vs.  Wood, 
297. 

2.  Where  a  final  account  has  been  passed,  or  the  time  limited  by  law  for 

the  settlement  up  of  an  estate  has  elapsed,  and  the  same  person  who  is 
executor  or  administrator,  is  also  guardian  to  the  parties  entitled  to  the 
surplus,  the  law  will  adjudge  such  surplus,  in  his  hands  in4hat  char- 
acter in  which  his  duty  requires  he  should  hold  it.  Estate  of  Edward 
Williams,  25. 

3.  The  transfer  in  such  case  is  effected  by  operation  of  law,  and  requires 

no  act  of  the  party  himself.     76. 

4.  This  principle  does  not  apply  to  a  trustee  appointed  under  a  decree  of 

the  Court  of  Chancery  to  sell  property  where  no  time  is  fixed  by  law 
for  the  completion  of  his  trust.     Ib. 
TRANSFER  OF  STOCK. 

1.  The  mere  addition  of  the  word  "trustee"  to  the  name  of  the  person  who 
appears  on  the  books  of  a  corporation  as  the  stockholder,  with  nothing 
to  indicate  the  character  of  the  trust,  or  the  party  beneficially  inter- 
ested, will  not  deprive  him  of  the  legal  capacity  to  transfer  the  stock, 
though  by  so  doing,  he  may  commit  a  breach  of  trust.  Mbert  and  wife 
vs.  Savings  Bank  et  al.,  407. 

See  LIABILITY  OF  CORPORATIONS  ON  TRANSFERS  OF  THEIR  STOCK. 
TRESPASS. 

1.  Courts  of  equity  will  interfere  by  injunction,  even  as  against  trespassers, 
if  the  acts  done,  or  threatened  to  be  done,  to  the  property,  would  be 


INDEX.  597 

TRESPASS—  Continued. 

ruinous  and  irremediable.  Georges  Creek  Coal  and  Iron  Company  vs. 
Detmold,311. 

2.  But  an  injunction  is  not  granted  to  restrain  a  mere  trespass,  where  the 
injury  is  not  irreparable  and  destructive  to  the  plaintiff's  estate,  but 
is  susceptible  of  perfect  pecuniary  compensation,  and  for  which  the 
party  may  obtain  adequate  satisfaction  in  the  ordinary  course  of  law. 
76. 
TRUST. 

See  LIMITATIONS,  STATUTE  OF,  2,  3. 
RESULTING  TRUST. 
SECRET  TRUST. 

LIABILITY  OF  CORPORATIONS  ov  TRANSFERS  OF  THEIR  STOCK,  2  to  4. 
TRUSTEE  IN  INSOLVENCY. 

1.  It  is  the  right  and  duty  of  the   trustee  in   insolvency,  to   sell  the  mort- 

gaged property  of  his  insolvent,  and  pay  off  all  the  liens  and  incum- 
brances  thereon.  Bank  of  Westminster  vs.  Whyte,  536. 

2.  Though  the  transfer  made  to  secure  a  debt,  is  in  the  nature   of  a  trust, 

still  it  is  the  duty  and  the  right  of  the  trustee  in  insolvency,  to  dispose 
of  the  property.     76. 
TRUSTEES,  THEIR  DUTIES  AND  POWERS. 

1.  A  trustee  for  the  sale  of  lands  under  a  decree  of  a  court  of  equity,  is  the 

mere  instrument  or  agent  by  whose  hands  the  court  acts,  and  the  sales 
made  by  him,  are,  in  fact,  the  sales  of  the  court.  Seicall  vs.  Cosligan, 
208. 

2.  The  court  has  the  incontestible  power  to  pass  an  order,  directing  the 

trustee  to  bring  the  proceeds  of  sale  into  court,  to  be  disposed  of  under 
its  direction.  76. 

3.  The  court  is  not  disposed  to  look  with  favor  upon  the  appropriation  by 

its  trustee  of  the  proceeds  of  sales  without  its  previous  authority,  and 
such  conduct  will  be  viewed  with  especial  jealousy  where  married 
women  and  children  are  concerned,  and  the  property  or  fund  raised 
by  the  sale,  is  subject  to  marriage  settlements,  designed  for  the  sup- 
port of  families.  76. 

4.  When  a  trustee,  appointed  by  this  court  to  sell  property  and  bring  the 

proceeds  in  to  be  disposed  of  under  its  orders,  disburses  money  without 
competent  authority,  he  will  be  chargeable  as  if  the  money  was  in 
hand.  Green  vs.  Putney,  262. 

5.  This  principle  cannot  be  applied  with  the  same  rigor  to  a  trustee  acting 

under  a  deed,  giving  express  authority  to  pay  debts.     76. 

6.  Nor  does  the  fact  that  such  a  trustee  applies  to  a  court  of  equity  for  its 

direction  and  assistance  in  the  execution  of  his  trust,  place  him  in  the 
predicament  of  a  trustee  of  the  court's  appointment,  with  powers  limit- 
ed and  defined  by  the  decree.  76. 

7.  If  such  trustee  thinks  proper  himself  to  disburse  the  fund,  he  cannot  be 

called  upon  to  bring  it  into  court,  unless  the  disposition  which  he  has 
made  of  it,  is  shown  to  be  improper.     Ib. 
See  LIABILITY  OF  CORPORATIONS  ON  TRANSFERS  OF  THEIR  STOCK,  2  to  4. 


598  INDEX. 

UNDUE  PREFERENCE. 

1.  To  avoid  a  deed  under  the  acts  of  1812,  ch.  77,  and  1816,  ch.  221,  it  is 
necessary  to  show  not  only  that  an  undue  and  Improper  preference 
was  given  by  the  debtor,  but,  also,  that  this  was  done  with  a  view  or 
under  an  expectation  of  taking  the  benefit  of  the  insolvent  laws. 
Glenn  vs.  Baker,  73. 

See  DEEDS  VOID  UNDER  THE  INSOLVENT  LAWS,  1,  4,  5. 
USURY. 

1.  A  party,  who  has  paid  a  judgment  founded  on  a  usurious  debt,  may  ask- 

ed to  be  relieved  as  to  the  amount  paid  beyond  what  was  legally  due 
and  recoverable  ;  and  this  may  be  done  without  paying,  or  offering  to 
pay,  any  thing,  because  the  application  for  relief  is  predicated  upon  the 
averment,  that  too  much  has  been  already  paid.  Doub  vs.  Barnes, 
128. 

2.  A  purchaser  from  the  mortgagor,  may  avail  himself  of  the  defence  of 

usury,  to  defeat  the  action  of  the  assignee  of  the  mortgagee.     Ib. 

3.  Where  a  party  goes  into  a  court  of  equity  to  ask  relief  against  an  usuri- 

ous mortgage  or  contract,  he  must  do  equity,  by  paying,  or  offering  to 
pay,  the  principal  sum  with  legal  interest.  Wilson  vs.  Hardesty,  66. 

4.  Since  the  act  of  1845,  ch.  352,  usurious  instruments  are  not,  under  any 

circumstances,  avoided,  but  are  made  valid  securities  in  all  courts,  no 
matter  by  whom  proceedings  may  be  instituted  upon  them,  to  the  ex- 
tent of  the  principal  and  six  per  cent,  interest.     Gwyn  vs.  Lee,  445. 
See  CONSTITUTIONAL  LAW,  3. 
VACATING  CONTRACTS. 

See  JURISDICTION,  14. 
VACATING  SALES. 

See  PRACTICE  IN  CHANCERY,  45. 

SALES  BY  TRUSTEES,  1,  4,  6,  8,  9,  12. 
VALUATION  OF  COMMISSIONERS. 

1.  Commissioners  having  been  appointed  by  the  parties,  to  value  a  certain 

privilege  of  cutting  wood  and  timber,  to  which  the  widow  and  sons  of 
a  testator,  were,  by  his  will,  entitled,  it  was  HELD — That  the  maxim, 
omnia  rite  esse  acta  prcesumuntur,  is  applicable  to  the  proceedings  of 
these  commissioners,  and,  that  every  fair  intendment  should  be  made 
in  support  of  their  acts.  Crouch  vs.  Smith,  401. 

2.  The  rule  which  applies  to  the  valuations  made   by  commissioners  ap- 

pointed to  divide  real  estate,  that  such  valuations,  though  not  con- 
clusive, and  liable  to  be  rejected  if  clearly  shown  to  be  erroneous,  are 
entitled  to  great  respect,  and  are  not  to  be  disturbed,  unless  the  weight 
of  evidence  in  opposition  to  them,  is  decidedly  preponderating,  is  ap- 
plicable, also,  to  the  valuation  made  by  these  commissioners.  Ib. 
VENDOR'S  LIEN. 

1.  Whether  the  vendor's  lien  exists  or  not  in  a  case  where  the  property  of 

an  individual  is  taken  for  the  public  use,  in  virtue  of  the  right  of 
eminent  domain,  is  a  question  of  no  easy  solution.  Hamilton  vs.  An- 
napolis and  Elk  Ridge  Rail  Road  Company,  107. 

2.  Unless  an  express  contract  can  be  shown  for  the  transfer  of  the  vendor's 


INDEX.  599 

VENDOR'S  LIEN— Continued. 

lien,  it  will  not  pass  to  the  assignee  simply  upon  the  footing  of  the  as- 
signment of  the  debt.  Dixon  vs.  Dixon,  220. 

3.  There  are  cases  in  which  the  benefit  of  the  vendor's  lien  has  been  ex- 

tended to  third  persons,  but  they  are  cases  in  which  the  marshaling  of 
assets  has  led  to  such  results,  or  where  sureties,  who  have  been  com- 
pelled to  pay  for  their  principals,  have  been,  by  substitution,  clothed 
with  all  the  rights  and  remedies  of  those  whose  debts  they  paid.  Ib, 

4.  There  has  been  no  case  found,  where  the   assignee  of  a  note  or  other 

security  given  for  the  purchase  money  of  land,  has  been  permitted  to 
sustain  a  claim  of  this  description  on  an  implied  agreement  to  assign 
the  lien,  though  cases  may  be  found  in  which,  by  express  agreement,  the 
lien  has  passed  to  the  assignee  of  the  bond  or  note.  Ib. 

5.  The  lien  being  intended  to  secure  the  payment  of  the  purchase  money 

to  the  vendor,  an  assignment  of  the  notes  or  bonds  given  therefor, 
without  responsibility,  and  for  value,  is  equivalent  to  payment,  and 
extinguishes  the  lien.     Ib. 
See  PRACTICE  IN  CHANCERY,  35. 
VESTED  ESTATE. 

See  WILL  AND  TESTAMENT,  15. 

VOLUNTARY  CONVEYANCE  AND  AGREEMENT. 
See  CONVEYANCE,  VACATING  OF,  2  to  6. 

DEEDS  VOID  DNDER  THE  INSOLVENT  LAWS. 
SPECIFIC  PERFORMANCE,  13. 
VOIR  DIRE. 

See  PRACTICE  IN  CHANCERY,  26. 
WAIVER. 

See  COMMISSIONS,  2. 

PRACTICE  IN  CHANCERY,  28. 
WARRANT  OF  RESURVEY. 

See  PATENTS. 
WARRANTY. 

1.  Though  the  seller  of  a  chattel,  of  which  he  has  possession,  warrants  the 

title,  he  is  not  bound  to  answer  for  the  quality,  unless  he  expressly 
warrants  the  goods  to  be  sound  and  good,  or  unless  he  makes  a  fraud- 
ulent misrepresentation,  or  uses  some  fraudulent  concealment  con- 
cerning them,  which  amounts  to  a  warranty  in  law.  Taymon  vs. 
Mitchell,  496. 

2.  An  assertion  respecting  an  article   must  be  positive  and  unequivocal, 

and  one  on  which  the  buyer  places  reliance,  in  order  to  amount  to  a 
warranty,  and  if  the  vendee  has  an  opportunity  of  examining  the 
article,  the  vendor  is  not  liable  for  any  latent  defect,  without  fraud  or 
an  express  warranty,  or  such  a  direct  representation  as  is  tantamount 
to  it.  Ib. 

3.  Every  mere  false  assertion  of  value,  when  no  warranty  is  intended,  will 

not  constitute  a  ground  of  relief  to  the  purchaser.  If  the  assertion  is 
a  mere  matter  of  opinion,  in  which  parties  may  differ,  or  if  the  seller 
indulge  in  the  common  language  of  puffing,  it  will  not  amount  to  a 
warranty.  Ib. 


600  INDEX. 

WARRANTY—  Continued. 

4.  But  if  a  party  undertakes  to  make  a  direct  representation  of  a  fact, 

even  though  he  be  mistaken  as  to  the  fact,  if  the  other  party  is  in- 
duced to  act  upon  such  representation,  equity  will  relieve  against  the 
act,  equally  as  if  it  had  been  .a  wilful  and  false  assertion,  for  the  in- 
jury is  the  same.  Ib. 

5.  Though  the  means  of  correct  information  be  equally  open  to  both    par- 

ties, yet,  if  either  of  them  does  or  says  any  thing  tending  to  impose 
upon  the  other,  and  he  is  imposed  upon,  to  his  injury,  the  contract  will 
not  be  allowed  to  stand.  16. 

6.  In  the  case  of  a  breach  of  warranty,  the  vendee  may  sue  upon  it,  with- 

out returning  the  goods,  or  rescind  the  contract  by  returning  them,  or 
the  offer  to  return  them,  in  a  reasonable  time,  so  that  the  seller  is 
placed  in  statu  quo,  and  sue  for  and  recover  back  the  purchase  money, 
in  an  action  for  money  had  and  received.  76. 

7.  What  is  a  reasonable  time,  within   which  the  purchaser  must  rescind 

the  contract,  by  a  return  of,  or  an  offer  to  return  the  thing  purchased, 
does  not  appear  to  be  stated  in  the  books.  The  time,  however,  is  to 
be  computed  from  the  period  when  the  unsoundness  is  discovered,  and 
not  from  the  date  of  the  contract.  16. 

8.  An  offer  to  return  negroes  found  to  be  unsound,  made  within  a  month 

after  the  sale,  and  as  soon  as  their  unsoundness  was  discovered,  was 
held  to  be  within  a  reasonable  time.  Ib. 

9.  An  offer  to  return  chattels  within  a  reasonable  time,  is  equivalent  in  its 

effect  upon  the  remedy,  to  an  offer  accepted  by  the  seller.    Ib. 
See  EVIDENCE,  5. 
WASTE. 

See  JURISDICTION,  10  to  13. 

MORTGAGOR  AND  MORTGAGEE,  4,  5. 
WIFE'S  RIGHT  TO  PERSONALTY. 

1.  It  is  not  in  the  power  of  a  husband  in  this  state,  by  will,  to  deprive  his 

widow  of  that  portion  of  his  personal  estate  to  which  she  is  entitled  by 
law.  Hays  vs.  Henry,  337. 

2.  Yet  there  can  be  no  doubt  of  his  right  to  dispose,  absolutely,  of  this  de- 

scription of  property  during  his  life,  independently  of  the  concurrence 
and  exonerated  from  any  claim  of  the  wife,  provided  the  transaction 
be  not  colorable  merely,  and  be  unattended  with  circumstances  indic- 
ative of  fraud  upon  the  rights  of  the  wife.     Ib. 
See  FRAUDULENT  CONVEYANCES,  1. 
WILL  AND  TESTAMENT. 

1.  If  the  interest  which  a  creditor  takes  by  a  will,  is  not  co-extensive  with, 

or  of  the  same  nature  of  that  to  which  he  is  entitled  from  the  testator 
as  his  debtor,  he  will  be  entitled  to  both.  Waters  vs.  Howard,  112. 

2.  The  degree  of  intention  necessary  to  raise  a  case  of  election  must  plain- 

ly appear  upon  the  face  of  the  will,  but  the  court  is  not  to  disregard 
what  amounts  to  a  moral  certainty  of  the  intention  of  the  testator.  Ib. 

3.  Though  evidence  dehors  the  will,  will  not  be  admitted  to  prove  or  dis- 


INDEX.  601 

WILL  AND  TESTAMENT—  Continued. 

prove  such  intention,  there  is  no  valid  objection  to  such  evidence  to 
show  the  state  and  circumstances  of  the  property.  Ib. 

4.  A  party  cannot  take  a  benefit  under  a  will,  and  at  the  same  time  defeat 

its  provisions.     Ib. 

5.  A  testator,  after  disposing  of  certain  portions  of  his  estate,  devised  all 

the  residue  of  his  property  to  the  complainant,  in  trust,  to  hold  the  in- 
come, rents  and  profits,  of  one-third  part  of  said  residue  for  the  use  of 
his  grandson,  the  defendant,  during  his  life,  such  income,  &c.  to  be 
paid  to  him  from  time  to  time,  as  they  might  accrue,  and  after  his 
death,  to  his  children  in  fee,  and  failing  children,  to  the  other  grand 
children,  to  whom  the  remaining  two-thirds  were  in  like  manner  de- 
vised.    At  the  time  of  the  testator's  death,  the  grandson  was  indebted 
to  him  in  a  large  sum  of  money,  but  it  appearing  that  the  testator  did 
not  mean  to  regard  him  as  his  debtor  in  respect  thereof,  it  was  HELD — 
That  to  enforce  the  payment  of  this  debt  out  of  the  defendant's 
share  of  this  income  and  profits,  would  defeat  the  clear  intention 
of  the  testator  to   provide   his  grandson  a   competent  support. 
Waters  vs.  Waters,  196. 

6.  That  it  was  the  duty  of  the  complainant,  the  trustee,  to  retain  the 

amount  of  a  loss,  occasioned  by  the  failure  of  the  defendant  to  comply 
with  the  terms  upon  which  he  purchased  a  part  of  the  trust  estate  out 
of  the  income  of  said  trust  estate  payable  to  the  defendant.  Ib. 

7.  Upon  a  devise  of  real  and  personal  property  to  a  trustee,  in  trust,  to  ap- 

ply the  income  arising  therefrom  for  the  mutual  benefit  of  the  uncle 
and  aunt  of  the  testator  for  life,  and  after  the  death  of  the  uncle  to  the 
mutual  benefit  of  the  aunt  and  her  children.  It  was  HELD — 

That  during  the  life  of  the  uncle  and  aunt  the  income  of  the  trust 
estate  should  be  equally  divided  between  them,  and  that  the  title  of 
the  children  of  the  aunt  to  participate  in  the  income  is  to  be  post- 
poned until  after  the  death  of  the  uncle.  Mitchell  vs.  Holmes,  287. 

8.  A  testator  devised  certain  real  and  personal  property  to  his  wife  "to 

her  use  for  the  benefit  of  her  and  her  children  under  age,"  and  after 
they  all  come  of  age,  "to  his  wife  during  her  natural  life  and  no  longer,'' 
and  after  her  death,  the  whole  "to  be  divided  equally,  share  and  share 
alike,''  between  the  testator's  seven  children,  (naming  them,)  or  equal- 
ly between  such  as  shall  then  be  living.  It  was  HELD — 

1.  That  though  this  will  was  executed  prior  to  the  act  of  1822,  eh. 
162,  which  abolishes  thereafter  estates  in  joint-tenancy,  unless  the 
devise  expressly  declares  that  the  property  shall  be  so  held,  this 
devise  does  not  create  an  estate  in  joint-tenancy. 

2.  The  words,  to  be  equally  divided,  share  and  share  alike,  even  in  a 
deed,  would  create  a  tenancy  in  common. 

3.  This  will  being  prior  to  the  act  of  1825,  ch.  119,  and  there  being 
no  words  of  inheritance  or  perpetuity  from  which  the  intention  of 
the  testator  to  pass  a  fee,  could  be  clearly  ascertained,  it  was 
held  that  the  children  took  estates  for  life  only. 

4.  The  true  construction  of  the  whole  clause,  is,  that  the  widow 

VOL.  I 51 


602  INDEX. 

WILL  AND  TESTAMENT— Continued. 

took  an  estate  for  life  ;  for  a  period  thereof,  to  be  held  by  her,  for 
the  benefit  of  herself  and  her  children  ;  that  is,  during  their  mi- 
nority. Upon  the  children  attaining  their  full  age,  the  widow 
still  living,  her  estate  would  continue  until  her  death,  disencum- 
bered of  any  charge  on  account  of  the  children,  and  upon  her 
demise  the  limitation  over  -for  life  to  the  children  would  take  ef- 
fect, and  upon  their  death,  the  inheritance  would  pass  to  the  heirs 
•at  law  of  the  testator  as  property  undisposed  of  by  the  will.  Moody 
vs.  Elliott,  290. 

9.  A  testator  devised  his  lands  to  his  executor  to  be  sold,  and  gave  a  lega- 

cy of  $2,000  to  his  niece,  to  be  paid  her  out  of  the  proceeds  of  the  sale 
of  his  real  estate,  HELD — That  the  surviving  husband  of  the  niece  had 
the  same  title  to  demand  this  legacy  bequeathed  his  wife,  as  if  it  had 
been  payable  out  of  the  personal  estate  of  the  testator,  and  that  it  made 
no  difference  whether  the  wife  died  before  or  after  the  sale  actually 
took  place.  Thomas  vs.  Wood,  296. 

10.  It  is  the  duty  of  the  courts  to  give  effect  to  every  part  of  a  will,  with- 
out change  or  rejection,  provided,  an  effect  can  be  given  to  it  not  in- 
consistent with  the  general  intent  of  the  whole  will  taken  together. 
Pue  vs.  Pue,  382. 

11.  Where  there  are  two  conflicting  clauses,  the  principle  is,  that  you  are 
not  to  disturb  the  prior  devise  farther  than  is  absolutely  necessary  for 
the  purpose  of  giving  effect  to  the  posterior  qualifying  disposition.  Ib. 

12.  Where  a  testator  uses,  in  one  part  of  his  will,  words  having  a  clear 
meaning  in  law,  and  in  another  part,  words  inconsistent  with  the  former, 
the  first  words  are  to  be  cancelled  and  overthrown,  only,  when  the 
two  provisions  are  totally  inconsistent  with  each  other,  and  where  the 
real  intention  of  the  testator  cannot  be  ascertained.     Ib. 

13.  It  is  now  fully  established  that  the  general  intent  of  the  testator,  though 

first  expressed,  will  overrule  the  particular  intent.     76. 

14.  A  testator,  by  his  will,  manumitted  certain  negroes,  and  after  giving 
then  a  pecuniary  legacy,  devised  as  follows  :  "I  will  and  devise  that 
my  executor  shall  cause  to  be  erected  on  some  part  of  my  farm,  called 
Rose  Hill,  (the  place  to  be  selected  by  the  above  manumitted  negroes,) 
a  good  substantial  dwelling  house,with  one  brick  chimney,  which  house, 
together  with  two  acres  of  land  adjoining  thereto,  I  give  and  devise  to 
the  above  manumitted  negroes  and  their  heirs  forever.    HELD — 

That  the  testator  intended,  by  this  devise,  to  provide  the  negroes  in 
question  with  a  habitation  to  live  in,  and  as  this  intent  comes  in 
conflict  with  the  policy  of  the  legislature,  which  forbids  persons  in 
their  situation  from  remaining  in  the  state,  unless  upon  terms  in- 
compatible with  the  unrestricted  enjoyment  of  the  devise,  the 
latter  must  fail.  Negro  Monica  vs.  Mitchell,  356. 

15.  A  testator  devised  and  bequeathed  certain  portions  of  his  real  and  per- 
sonal estate  to  trustees,  in  trust  for  his  daughter,  during  her  life,  and 
after  her  death,  in  trust  for  any  child,  or  children,  she  might  have, 
with  direction  that  the  trustees,  or  the  survivor  of  them,  should,  after 


INDEX.  603 

WILL  AND  TESTAMENT— Continued. 

the  death  of  his  said  daughter,  convey  and  assign  unto  her  children, 
if  she  should  have  or  leave  any  at  the  time  of  her  death,  in  equal 
portions,  absolutely,  all  the  money  and  estate  in  his  will  devised  and 
bequeathed  unto  the  said  trustees,  for  the  use  and  benefit  of  his  daugh- 
ter and  her  children  ;  provided,  always,  that  no  such  conveyance  or 
assignment  should  be  made,  until  the  child  or  children  to  whom  the 
same  was  to  be  made,  shall  have  severally  attained  the  age  of  twenty- 
one  years."  The  daughter,  who  survived  the  testator,  died,  leaving 
two  sons,  one  of  whom  died  intestate,  and  without  issue,  before  at- 
taining the  age  of  twenty-one  years.  HELD — 

1.  That  the  deceased  son  of  the  testator's  daughter,  had  a  vested  in- 
terest in  the  estate  devised  and  bequeathed  to  his  mother  for  life, 
and  that,  upon  her  death,  and  when  he,  if  living,  would  have  at- 
tained the  age  of  twenty -one,  the  trustees  would  have  been  bound 
to  convey  and  assign  to  him  his  proportion  of  said  estate. 

2.  That  his  representatives  can  only  claim  as  he  could  have  done  if 
living,  and  as  he  had  no  power  to  call  for  the  legacy  before  he  at- 
tained twenty -one,  so  neither  can  his  representatives  insist  upon 
the  payment  of  it  sooner.     Keerl  vs.  Fkilton.  532. 

16.  The  same  will  contained  the  following  clause,  "After  the  death  of  my 
said  wife,  I  give,  devise  and  bequeath  all  the  rest,  residue  and  remain- 
der of  my  estate,  real,  personal  and  mixed,  unto  my  said  children,  (nam- 
ing his  six  sons,)  and  to  the  said  trustees,  for  my  said  daughter,  as  afore- 
said, to  be  divided  into  equal  proportions  for  my  said  seven  children, 
andtojtheir  heirs,  executors  and  assigns  forever. "  The  daughter  died, 
living  the  widow  of  the  testator.  HELD — 

1.  That  the  daughter  took  an  absolute  title  in  remainder,  in  one- 
seventh  of  this  rest  and  residue,  upon  the  death  of  the  widow,  to 
whom  a  life  estate  was  given. 

2.  That  upon  the  death  of  the  widow,  this  one-seventh,  will  descend 
to  the  heirs  at  law  of  the  daughter,  without  being  liable  to  the 
curtesy  of  her  husband,  she  not  having  been  seized  in  fact,  and 
in  deed  of  this  estate  during  coverture.     Ib. 

See  COMMISSIONERS,  1. 
ELECTION,  1. 
NOTICE  OF  TRUST,  3. 
POSTHUMOUS  CHILDREN. 
WOOD  CUT,  NOT  REALTY. 

1.  Wood  and  timber  cut  down  prior  to  the  sale  of  land,  does  not  pass  to 
the  purchaser,  but  is  severed  from  the  inheritance,  and  becomes  per- 
sonal property.  Crouch  vs.  Smith,  401. 


A—   _•..!.<    IH,  „,!,,        I     || 
001  167325 


